Con -textual, not -stitutional, Law

-- By ThomasVance - 11 Mar 2022

Section I: The Commerce Clause

Introduction

“The Congress shall have Power…To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes. Since the early 19th century, the Court has spent considerable time shaping the word “Commerce.” But its cases understand the phrase in different ways that only make sense by focusing on context. Four distinct cases exemplify this proposition.

Section II: Commerce Clause Jurisprudence

A. Origins

In Gibbons (1824), the Supreme Court held that Congress’ commerce power is a full, exclusive, and plenary power that prescribes the rules that govern commerce. Here, the Court was presented with a conflict between a state-granted monopoly over steamboat operation and a federally-granted license to operate a steamboat. Marshall defined “commerce” as the commercial intercourse between nations and parts of nations in all its branches. This definition ensured that “commerce” covered “navigation,” and it specified Congress’ ability to regulate interstate and inter-nation navigation.

Marshall rejected a narrower definition of commerce that would limit the term to traffic, buying and selling, or the interchange of commodities. Why? Post-ratification, Marshall seemed concerned with maintaining strong powers for each branch of government. Marshall established judicial review in Marbury, created a deferential standard of review in McCulloch, and sided with the oppressor in M’Intosh. The Chief Justice’s previous opinions are more telling of how he would define commerce in Gibbons than his understanding of the “common” definition of commerce. The United States was still a relatively young country, and Marshall did not want to stunt its growth.

B. Lochner Era

Nearly a century later, the Supreme Court was concerned with a different kind of national growth: economic growth. These concerns animated what scholars refer to as the “Lochner Era” – a period of heightened judicial scrutiny.

In Hammer (1918), the Supreme Court ruled a prohibition on the interstate transportation of goods produced by child labor to be outside the scope of the Commerce Clause. Such a prohibition could be classified as a limit on commercial intercourse between parts of nations because it limited what could enter one state and exit another. Instead of making a decision under Marshall’s definition of commerce, the Court focused on the effects of the prohibition. The Court reasoned that because the prohibition would subject intrastate production to federal control, the prohibition was unconstitutional.

The decision to emphasize intrastate production and de-emphasize interstate commerce is hard to understand from a purely textual perspective. The Constitution does not provide a framework such that one would know whether to scrutinize the legislation’s effect on commercial interactions or the legislation’s effect on federalism.

The decision to highlight one effect of the prohibition over another makes more sense from a contextual perspective. Operating under the assumption that the most confident and able people would fuel the economy, the Court was quite interested in preserving free markets. Thus, Justice Day could confidently frame the prohibition as an instance of supply-side, government intervention.

C. New Deal Era

Following the Great Depression, the definition of Commerce ballooned.

In Wickard (1942), the Supreme Court upheld a Congressional attempt to regulate wheat prices that imposed limits on wheat growth. A farmer grew wheat in excess of his designated allotment. Even though it was for personal and not commercial use, the Court held that Congress could regulate activity that, in the aggregate, had a substantial effect on interstate commerce.

Justice Jackson’s substantial effects test & aggregation principle operated as both a repudiation of Lochner era jurisprudence and an expansion of Marshall’s original formulation of commerce. Jackson refused to draw lines between local production and national transportation. But he also interpreted the Commerce Clause in a way that does not obviously follow from Marshall’s interpretation. Even though Marshall did not limit interstate commerce to traffic, purchases, and trade, it is not apparent that power over interstate commerce would include individual activities that could substantially affect interstate commerce in the aggregate. The Constitution and prior case-law cannot explain the impetus for a third, unique interpretation of the Commerce clause. Context can. Justices realized that the free market could not fix everything. Wickard shows a Court invested in strengthening Congressional control over interstate commerce.

D. Lopez

Following the New Deal Era and the passage of Civil Rights legislation under the Commerce Clause, a majority of members on the Court were itching for an opportunity to reel in Congressional power. Context changed and Lopez (1995) was that opportunity.

There, the Supreme Court ruled that the Gun-Free School Zones Act was beyond the scope of the Commerce power. The Court provided three general categories that are subject to regulation under the Commerce power: channels of interstate commerce, instrumentalities of or persons in or things in interstate commerce, and activity that substantially affects interstate commerce. Reasoning that guns in school zones fall under the third category, the Court held that the link between guns in school zones and interstate commerce was too attenuated and thus was not a legitimate exercise of Commerce power.

A close reading of the Commerce Clause or of pre-Lopez cases does not explain the non-attenuation requirement for the substantial effects test and aggregation principle. Context does. The Court was troubled by the breadth of the Commerce power and its effect on federalism, but it was not prepared to overrule the New Deal and Civil Rights line of cases. As a result, the Court named three general categories for permissible exercises of the Commerce power and inserted a limit on the third category.

Section III: Conclusion

Gibbons, Hammer, Wickard, and Lopez define Commerce in different ways. A strict focus on text or a mistaken belief that each case simply applies the law to the facts is bound to lead one astray. A focus on context provides a way out as it provides a plausible explanation as to why each majority opinion greatly differed from the previous. These cases are not about providing stable definitions of “commerce.” Rather, they are examples of different majorities justifying their internal balancing of federalism, national growth, and concern for the public.

There are at least two good subjects here, which is at least one too many for a 1,000-word essay. There's a question of constitutional interpretation: is it correct to say that the meaning of the word "commerce" is what changed from 1918 to 1995 in a series of Supreme Court cases, including—but hardly limited to—the three cases you cited? Then there's the quite separate question, familiar from our original discussion of realism: how do we predict what judges will think? (There's a third question, how to teach constitutional law to first-year students, but, subject to your correction, I don't think that's your actual topic.) The first step in improvement, I think is to decide which of these is the bearer of your central idea, and to focus on it.

I think we can agree that the Commerce Clause cases you mention (along with the minimum wage cases, the NLRA cases, Panama Refining, the "sick chicken" case, and many others) are not really about defining "commerce." They are about setting limits to the use of a textually-plenary power as a basis for comprehensive federal statutory regulation of American society. (The quintessential illustration of which is the use by the Justice Department of the Commerce Clause, rather than section 5 of the Fourteenth Amendment, as the primary constitutional authority for the Civil Rights Act of 1964.) This is why, from a realist point of view, discussion about words rather than things is itself both an analytic error and a political position. If what is changing is the political context rather than the meaning of the word, then we are never as certain about our law as we like to pretend.

Which is what rightly connected this inquiry to your other question: if we have to understand the socio-political context in which cases are decided to understand what the very words of the law mean, how can we predict how judges will decide cases? In two sense, this course is designed to be an answer that question, and it should afford you a number of starting points for writing about it. The starting-points should be numerous because the premise of our inquiry is that there are always multiple viewpoints from which we try to understand social phenomena, and it's the consilience of those different views that gives us confidence in our interpretations or predictions. Judges are individual human beings, so we gain some insight from personality psychology, but our material for each individual judge is very limited and unlikely in most cases to offer substantial individual insight. We can read what judges write, however; we can talk to former clerks who have spent much professional time with them; and we can study the practices they had before they went on the bench. We can put those forms of information to work in submissions in particular cases, as I tried to show with respect to one amicus brief in oner of my cases, analyzing the arguments presented to the Justices in light of what the lawyers knew about the individuals making the decision. That might provide further starting-points for the questions the second half of the current draft raises.

---

You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:

• #Set ALLOWTOPICVIEW = TWikiAdminGroup, ThomasVance
• #Set DENYTOPICVIEW = TWikiGuest

Note: TWiki has strict formatting rules for preference declarations. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of these lines. If you wish to give access to any other users simply add them to the comma separated ALLOWTOPICVIEW list.