Commerce.

• Author: Balkin, Jack M.
• Position: Constitutional interpretation of commerce power

This Article applies the method of text and principle to an important problem in constitutional interpretation: the constitutional legitimacy of the modern regulatory state and its expansive definition of federal commerce power. Some originalists argue that the modern state cannot be justified, while others accept existing precedents as a "pragmatic exception" to originalism. Nonoriginalists, in turn, point to these difficulties as a refutation of originalist premises.

Contemporary originalist readings have tended to view the commerce power through modern eyes. Originalists defending narrow readings of federal power have identified "commerce" with the trade of commodities; originalists defending broad readings of federal power have identified "commerce" with all gainful economic activity. In the eighteenth century, however, "commerce" did not have such narrowly economic connotations. Instead, "commerce" meant "intercourse" and it had a strongly social connotation. "Commerce" was interaction and exchange between persons or peoples. To have commerce with someone meant to converse with them, meet with them, or interact with them. Thus, commerce naturally included all trade and economic activity because economic activity was social activity. But the idea of commerce-as-intercourse was broader than economics narrowly conceived--it also included networks of transportation and communication through which people traveled, interacted, and corresponded with each other.

Understanding "commerce" in its original sense of "intercourse" is consistent with all of the evidence offered by rival theories of commerce as trade or economic activity; but it better explains the source of Congress's powers over immigration and foreign affairs. It also better explains Congress's broad powers over transportation and communications networks, whether or not these networks are used for purposes of business or trade.

Congress's power to regulate commerce "among the several states" is closely linked to the general structural purpose behind Congress's enumerated powers as articulated by the Framers--to give Congress power to legislate in all cases where states are separately incompetent or where the interests of the nation might be undermined by unilateral or conflicting state action. Properly understood, the commerce power authorizes Congress to regulate problems or activities that produce spillover effects between states or generate collective action problems that concern more than one state.

This basic structural principle explains why Congress's commerce power inevitably expanded with the rise of a modern integrated economy and society, and it explains and justifies most if not all of modern doctrine. This approach justifies the constitutionality of federal regulation of labor law, consumer protection law, environmental law, and antidiscrimination law; it even shows why a federal mandate for individuals to purchase health insurance is constitutional. Finally, this approach shows why there are still areas where federal commerce power does not extend--these are areas where Congress cannot reasonably claim that an activity produces interstate spillovers or collective action problems, and does not involve networks of transportation and communication.

TABLE OF CONTENTS INTRODUCTION: ORIGINAL MEANING AND THE MODERN STATE I. A GOVERNMENT OF FEDERAL AND ENUMERATED POWERS II. THE ORIGINAL MEANING OF "COMMERCE". III. "AMONG THE SEVERAL STATES". A. Operations and Effects B. Darby and Labor Regulation C. Wickard and the Culmination of Individual Effects D. Spillovers and Environmental Regulation E. Antidiscrimination Law and the Right to Commerce F. Federalism and Experimentation G. Lopez and Limits H. The Individual Mandate for Health Insurance: Lopez or Wickard? IV. AN ASIDE ON "NECESSARY AND PROPER" V. CONSTRUCTION AND CHANGE INTRODUCTION:

ORIGINAL MEANING AND THE MODERN STATE

A good test for the plausibility of any theory of constitutional interpretation is how well it handles the doctrinal transformations of the New Deal period. Roughly between 1937 and 1942, the Supreme Court significantly altered the law of federal-state relations, including the federal power to regulate commerce and to tax and spend for the general welfare.

The doctrinal structure that emerged by the mid-1940s was drastically different from the expectations of the founding generation. Even the most stridently nationalist members of that generation would not have expected a federal government as powerful as the one that developed in the middle of the twentieth century. It now had a robust regulatory and welfare state with jurisdiction over federal health and safety laws, laws protecting the environment, laws securing the rights of workers, and a panoply of federal civil rights guarantees. Without the New Deal transformation in constitutional understandings about national power, we could not have a federal government that provides all of the social services and statutory rights guarantees that Americans have come to expect. The government could neither act to protect the environment nor rescue the national economy in times of crisis.

The rise of the modern state poses a problem for originalist theories of constitutional interpretation. Some originalists, like Justice Antonin Scalia (or Judge Robert Bork) have simply accepted the New Deal as settled even though they believe it is inconsistent with original meaning. (1) Justice Scalia has called his acceptance of nonoriginalist precedents a "pragmatic" exception to originalism. (2) Other originalists, like Justice Clarence Thomas, (3) Randy Barnett, (4) and Richard Epstein, (5) refuse to make the same concessions to current political realities; they regard significant parts of the New Deal and the legislation that followed it as unconstitutional. For them, the question is how best to transition to a federal government that stays within its proper constitutional limits.

By contrast, Bruce Ackerman, a vigorous defender of the New Deal, agrees that it is inconsistent with the Founders' Constitution. (6) He explains the legitimacy of the New Deal by arguing that starting in 1936, the American people had a quasi-revolutionary "constitutional moment," which actually amended the Constitution outside of the Article V amendment process.

I reject each of these approaches. In a series of articles, I have argued that the opposition between originalism and living constitutionalism is a false dichotomy. (7) Constitutional interpretation requires fidelity to the original meaning of the text and to the principles stated by the text or that underlie the text. But fidelity to original meaning does not require fidelity to the original expected applications of text and principle. This approach, which I call the method of text and principle, is faithful to the original meaning of the constitutional text and to its underlying purposes. It is also consistent with a basic law whose reach and application evolve over time, a basic law that delegates to each generation the task of implementing the Constitution's words and principles. In each generation the American people are charged with implementing text and principle in their own time, through building political institutions, passing legislation, and creating precedents, both judicial and nonjudicial. These constitutional constructions, in turn, shape how succeeding generations will understand and apply the Constitution in their time. That is the best way to understand the interpretive practices of our constitutional tradition and the work of the many political and social movements that have transformed our understandings of the Constitution's guarantees. The present Article applies this approach to the question of federal power in the modern administrative and regulatory state; it shows how to use the traditional modalities of legal argument to articulate and flesh out the constitutional text and its underlying principles.

I disagree both with originalists and with their critics because I do not believe that the New Deal is inconsistent with the Constitution's original meaning, its text, or its underlying principles. Therefore there is no need to make an exception for it, "pragmatic" or otherwise. Nor did the transition to the modern state require an Article V amendment; and therefore it also did not require an amendment outside of Article V. Rather, the New Deal, while preserving the Constitution's original meaning, featured a series of new constitutional constructions by the political branches that were eventually ratified by the federal judiciary. (8) Although the scope of the change was larger than in most doctrinal transformations, the New Deal is actually a fairly standard example of how new constitutional constructions displace older ones.

The impetus for changed understandings came not from the courts but from the political branches, who led and responded to political mobilizations for change. The federal courts, attuned to an older way of thinking, and seeking to preserve older constructions, resisted at first. However, the public strongly supported the president and Congress, who continued to press for a different understanding of the Constitution. The courts, increasingly stocked with allies of the president, eventually followed popular opinion, legitimating the new constitutional constructions in a series of landmark decisions. (9)

But this simply raises the question: How is the modern regulatory and administrative state consistent with the original meaning of the constitutional text? In this Article, I focus on the most important source of authority for the modern state: the Commerce Clause of Article I, Section 8, which provides that "[t]he Congress shall have the power.... [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." (10) I will not be able to discuss all of the issues raised by the Commerce Clause in this...