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Law in Contemporary Society
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One Sentence, Three Meanings: Why We Need More from Con-Law-- By ThomasVance - 11 Mar 2022Section I: The Commerce ClauseIntroductionThis essay uses the Commerce Clause to explore the ability of judges to attribute significantly different meanings to the same sentence. Unsettled by this endless game of interpretation, I briefly propose an addition to the 1L Constitutional Law curriculum. Article I, Section 8 of the U.S. Constitution states that "The Congress shall have Power...To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." The obvious inquiry concerns the word "Commerce." Three distinct cases exemplify the different meanings that the Supreme Court has ascribed to the term.What is Commerce?In Hammer v. Dagenhart (1918), the Supreme Court ruled a piece of legislation outside the scope of the Commerce Clause. The legislation prohibited the interstate transportation of goods produced by child labor. Prohibiting the interstate shipment of goods is, arguably, plainly allowed under the Commerce Clause. However, the Court focused on the effects of the legislation and reasoned that, because it would subject intrastate production to federal control, the bill was not constitutional. As read, the opinion seeks to maintain a healthy balance between federal power and the power of the States. Although, Hammer was decided during what scholars call the "_Lochner_ Era"; a period characterized by the Court's lack of deference to legislatures and heightened interest in protecting free markets. In Wickard v. Filburn (1942), the Supreme Court upheld the Agricultural Adjustment Act of 1938 as a valid exercise of the Commerce power. The legislation attempted to regulate the price of wheat by implementing regulations on supply. A farmer grew wheat in excess of his Act-designated allotment. Even though it was for home consumption and not for sale, the court held that Congress could regulate activity that, in the aggregate, had a substantial effect on interstate commerce. The opinion discussed the relationship between excess wheat and interstate commerce to justify its decision and expansion of the Commerce power. Wickard was decided nearly a decade after the Great Depression, so the Court may have not been too keen on letting marks go unregulated. In United States v. Lopez (1995), the Supreme Court ruled that the 1990 Gun-Free School Zones Act was beyond the scope of the Commerce power. After a high school senior violated the Act by bringing a concealed gun into school, the student challenged the constitutionality of the act. 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. While the court did ask a series of questions now referred to as the Lopez test, the bottom line is that Commerce now encompassed the three aforementioned categories and the third category required a non-attenuated link between the regulated activity and interstate commerce. Although, what constitutes an attenuated link is far from clear. Subsequent cases that apply the Lopez test provide little clarity (See e.g., United States v. Morrison).Why The Differences?Hammer, Wickard, and Lopez are three different cases, with three different interpretations of a sentence that has not changed since 1788. With the exception of Hammer, these cases are still good law. So why the varying interpretations? Holmes, suggests that the answer lies in “some attitude [of the justices] upon a matter not capable of exact quantitative measurement, and therefore not capable of founding exact logical conclusions” (Holmes, 9). Different interpretations of the same sentence can appear to be rooted in some new, better, “logical” reading of the sentence or Constitutional history. But different interpretations are a result of the policy priorities and values of justices, not just the letter of the law. The Hammer court wanted to preserve free market economics. The Wickard court realized that the free-market could not always fix itself. The Lopez court sought to reel in Congressional Commerce power after expansion in the New Deal and Civil Rights Eras. Subsequent configurations of the nine justices may opt to establish a new test or rule based on their values. Said values may be in line with or entirely different from the values that have been used to justify Commerce decisions before.Section II: What We Need and Why We Need ItA Plea for a FrameworkTherefore, it is not enough for Constitutional Law to teach students the current rules and policy rationales for these rules. If the official interpretation of the Commerce Clause can change at moment’s notice, we, the students, will be ill-equipped to predict or even litigate for or against such a change. If the Court issues a decision next term that provides for more legislative deference without overturning Lopez, Constitutional Law should have provided students with enough information to, at least, understand that that was a possibility. Studying the moves in contemporary cases (Morrison, Raich, NFIB) is important because they can help us understand what sitting justices might be thinking. But we should also learn to develop a framework for discerning the priorities of judges that are not yet on the Supreme Court. For instance, if and when The Honorable Kentanji Brown Jackson is appointed to the Supreme Court, how can we identify what she values in debates about federalism, state sovereignty, and Congressional reach? Or, what if Gabrielle Stanfield is appointed to the high court and never had a chance to discuss federalism in one of her earlier opinions as a Circuit Judge. What framework can we deploy to predict how she might vote, especially if we are trying to get her to vote a certain way? I have no clue what such a framework would look like, but I imagine it starts with a much larger emphasis on the role of individual psychology and a conversation about identity states. These conversations should not start nor end in Law & Contemporary Society. They should start in 1L Constitutional Law and extend as long as our practice does.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:
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