How to think about the federal commerce power and incidentally rewrite United States v. Lopez.

• Author: Regan, Donald H.
• Position: Reflections on United States v. Lopez

Almost sixty years after the "revolution" of 1937, we still do not have an adequate theory of the commerce power. The Court was right to abandon the theory of dual federalism epitomized by Carter v. Carter Coal Co.;(1) and it has got the right results in the major cases decided since then. But our post-1937 theory, whether before or after Lopez, is a mess. On the one hand, we have a collection of doctrinal rules that, if we take them seriously, allow Congress to do anything it wants under the commerce power. On the other hand, we continue to pay lip service to the idea that Congress's power is limited. Not only is our theory self-contradictory in this way, but the particular rules we have developed, and the way we apply them, cannot stand up to reflection about why we have the federal government and what it ought to be able to do.

Lopez is an occasion to pause and take stock. The Court caught the nation's attention -- and presumably Congress's -- by striking down a law as beyond the commerce power for the first time in sixty years. I do not think Lopez is likely to inaugurate a major change in the Court's inclination to uphold federal legislation. Justice Kennedy, speaking also for Justice O'Connor, makes clear in his concurrence that for him Lopez itself is a hard case,(2) and Justice Rehnquist, writing for the Court, shows no sign of any intention to overturn the major Commerce Clause precedents since 1937.(3) Still, this is an appropriate moment to ask where we ought to go from here.

I am inclined to think the result in Lopez is correct, though it is not my main object to establish that. Even if the result is right, the opinion of the Court is unsatisfactory. Justice Rehnquist's distinction between commercial and noncommercial activities that affect commerce is an unsupported and ill-considered gloss on an already misguided theory. Justice Kennedy's opinion is an improvement, but it still takes too much of current thinking for granted.

If we are prepared to rethink more fundamentally, we can produce a theory of the commerce power that is internally consistent, that is faithful to the general intention of the Framers, that does no more damage to the text of the Commerce Clause than our current theory, that justifies the results -- though not all of the arguments -- in the major commerce power precedents, and that embodies an attractive conception of our federalism. Such a theory should appeal to originalists and believers in an evolving tradition alike.

My double goal, then, is to increase dissatisfaction with our existing Commerce Clause doctrine and theory, and to suggest a revised version to put in its place. My revised theory is not elaborated in every detail; I offer no mechanical test for the constitutionality of federal legislation. But it is a start. If I succeed in my first goal, I shall welcome collaboration on the second.

1. INTRODUCTION TO THE REVISED THEORY

   The kernel of my positive suggestion is so obvious that I would be embarrassed to offer it, if it did not seem necessary that someone should: when we are trying to decide whether some federal law or program can be justified under the commerce power, we should ask ourselves the question, "Is there some reason the federal government must be able to do this, some reason why we cannot leave the matter to the states?" Federal power exists where and only where there is special justification for it -- what sort of justification, it is my project to explain.

   This idea is embodied in the sixth of the Virginia Resolutions, approved by the Constitutional Convention on July 17, 1787, in the following form:

   That the National Legislature ought to possess the Legislative Rights

   vested in Congress by the Confederation; and moreover, to legislate

   in all cases for the general interests of the union, and also in those to

   which the States are separately incompetent, or in which the harmony

   of the United States may be interrupted by the exercise of individual

   Legislation.(4) Of course, this language did not find its way into the Constitution. The Committee of Detail replaced this general description of national legislative power with a lengthy enumeration of specific powers,(5) which developed into the eighteen clauses of Article 1, Section 8. But there is no reason to think the Committee of Detail was rejecting the spirit of the Resolution when they replaced it with an enumeration. They may have thought they were doing nothing more than unfolding the implications of the general language. They may have meant to guard against overexpansive interpretation of the Resolution's vague, or at least abstract, language. They may have been motivated by stylistic considerations.(6) If the Committee was worried about the broad language of the Resolution, it is an irony indeed that later times have relied on the Committee's language to justify some exercises of the commerce power that are plainly beyond the spirit of the vague" original.(7)

   The Virginia Resolution is not part of the Constitution, and I should therefore point out that I do not rely on it for any proposition that we could not infer from the text of the Constitution itself. The mere fact of an enumeration of powers makes it clear that the federal government's powers are meant to be limited. Furthermore, if we tried to figure out from the specific grants what the principle of inclusion was, we would surely come up with something like the Resolution. Nor does the enumeration make the question of the principle of inclusion irrelevant; we are forced to consider the question as we try to interpret the vaguer of the grants of power, like the Commerce Clause. The actual Resolution confirms what the text suggests about the principle underlying the enumeration, and gives us time-honored language to embody it.

   Attending to the idea embodied in the Virginia Resolution will tend to narrow somewhat our present view of the commerce power. But my main object is not to narrow; it is to put our Commerce Clause jurisprudence on a reasonable footing. I have no desire to take us back to the specific ideas of the Framers about what the federal government should do in 1787, when the economy and the nation were very different. I do not even want to take us back to 1936. In my opinion, the great federal regulatory programs of the New Deal era and beyond are all easily defensible, at least in their broad outlines. There have been excesses, both around the edges of some of those programs and in such frolics as the Gun-Free School Zones Act,(8) but I am far from being an opponent of federal power. Indeed, having a better theory of the commerce power than we currently have would be our best defense -- insofar as constitutional ideas matter at all -- against those who really do seek radical limitations on federal power. It is the internal inconsistency of existing Commerce Clause theory, and the downright silliness of some of the doctrines, that make it seem as if programs that have become part of the fabric of our lives might still be in danger from changes in the personnel of the Court.

   So, my suggestion is that in thinking about whether the federal government has the power to do something or other, we should ask what special reason there is for the federal government to have that power. What reason is there to think the states are incapable or untrustworthy? I propose to elaborate this suggestion largely by looking at specific cases to see what sorts of justification for federal power seem to have force in light of our history and the spirit of our institutions. In most of the great Commerce Clause cases, appropriate justifications are easily identified, even if the Court failed to identify them adequately; but in some cases that have become important precedents, the justifications are harder to find, and much of what is offered by the Court as justification is transparently inadequate.(9)

   Beyond illustrating my approach, I shall make no other effort to explain why we should adopt it. In particular, I am not going to offer any general discussion of the point or value of federalism. The idea of the states as laboratories where different approaches to dealing with widespread problems can be tried out(10) is valuable and important; but if offered as the principal argument for federalism, it suggests too strongly that there is a single best approach to each problem and that once experiment has discovered the best approach, all states can be expected to adopt it (so why not just adopt it at the federal level?). A newer argument, that we must limit the federal government's commandeering of state political institutions in order to maintain political accountability,(11) is also important, but it is relevant only to a narrow aspect of the problem of defining the federal power. My own simpleminded view about the value of federalism is that, other things being equal, the states are entitled to be different -- to have different views about the best solutions to their problems and even to have different views about what is a problem and what is not. Other things being equal, state differences should be protected. This is partly a matter of promoting political responsiveness and individual choice, and partly just a belief in the value of variety. Our national culture is already too homogenized to expect great differences between the states, but what cultural differences still remain should not be further eroded by central legislation without good reason.(12)

   Of course, if I offer no more defense of federalism than this, some readers will conclude I am the prisoner of an outmoded idea. It is a common view among constitutional law scholars that we should abandon the idea of limits on federal power. We have become a unitary nation with an omnicompetent central government, and we should just admit it.(13)

   Perhaps this is the best approach in the end. Certainly it achieves an internally consistent Commerce Clause theory that accommodates...