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How Can We Fix the Constitution?

Saving Obamacare

How to update the Constitution's approach to limiting federal power.

Jaguar Scene
How is the Commerce Clause like the most recent season of Mad Men?

Photograph by Jordin Althaus/AMC.

Mad Men’s recently completed season offered viewers a recurring metaphorical joke involving Jaguar USA, a prized new client of the ad firm at the center of the show.  In vignettes both creative and macabre, the beloved Jaguar was compared to an alluring but unreliable mistress, a beautiful, misfiring bauble.  My law professor riff on this is to imagine, in light of America’s even longer love affair with our written Constitution, which cars represent crucial parts of the document, as interpreted by the Supreme Court. 

The First Amendment’s free speech clause has surely become the court’s favorite plaything, a sporty number—seating five—that the justices have taken at high speed into new directions, imperiling traditional assumptions about election law and consumer products regulation in the process. The 14th Amendment’s promise of equal protection before the law now functions like an adaptable suburban minivan, capacious enough to accommodate new passengers every few years.  The Second Amendment’s right to bear arms calls to mind a gas-guzzling pickup truck or supersized SUV (painted red, of course)—a divisive symbol of American individualism.

The Commerce Clause, meanwhile, is like the decrepit old jalopy languishing in your uncle’s garage:  a clunky relic ill-suited to modern times and made barely functional only by an overlay of judicial jerry-rigging that dates back almost a century.  Few parts of the Constitution are at once so disconnected from their textual meaning and public understanding.  No one, besides a small handful of scholars and one sitting Justice (Clarence Thomas), seriously argues for a literal approach to defining what “commerce” means: to limit the clause this way would require a radical dismantling of the national government. And no one besides lawyers and judges really debates federal and state power in the Commerce Clause’s complex vernacular—a sharp contrast to debates over, say, the Second Amendment, or affirmative action, or the Takings Clause, all of which regular people can easily discuss.

Commerce Clause doctrine today reflects an unwieldy admixture of judge-made fixes stretching back several generations. In response to Franklin Roosevelt’s threat to “pack” the Supreme Court, the justices of the 1930s eventually upheld federal regulation of even small choices made by individuals when they had a substantial impact on the national economy, taken in the aggregate.  The latest generation of Supreme Court justices felt impelled, however, to tinker further.  Thus in its 1995 decision, United States v. Lopez, the court gave us the distinction between “commercial” activity, which Congress could address, and “noncommercial” activity, which it could not. Five years later, the justices made this arbitrary line more tendentious, distinguishing between human behavior that was “economic” and that which was “noneconomic.” This Thursday, we will find out what all this means for the constitutionality of the Affordable Care Act and whether the justices will pile on yet another distinction between “action” (buying health insurance) and “inaction” (refusing to).

What seems fairly certain, however, is that the doctrinal silliness surrounding the Commerce Clause doesn’t best serve the values of our federalism. It doesn’t do enough to encourage state experimentation, institutional pluralism, greater democratic accountability, or deference to the geographic sorting of people with different preferences.  By focusing on the outer limits of congressional authority in a search for what little remains that is exclusively of state concern, Commerce Clause doctrine distracts us from the vast realm of overlapping authority, where the most important federalism questions arise today.  Very few spheres of regulatory interest are today “truly national” or “truly local”; instead they are the business of both the states and the national government.  What matters most for state sovereignty is the manner in which state variation and experimentation is permitted to flourish, even (and especially) once the federal government has also entered the field, and potentially “preempted” the states. In the pre-emption arena, the federal courts, not Congress, have often represented the real threat to state authority, by assuming that federal laws pre-empt state laws even if the statutes don’t explicitly say so.

In short, federal judges spend far too much time tinkering with the Commerce Clause, trying to retrofit the jalopy so it can drive on 21st-century roads.   It’s an effort that is bound to fail in meaningfully preserving state authority, and it distracts us from more important points of federal encroachment that arise in the realm of overlapping sovereignty.   What to do?   It is tempting to simply suggest a return to the approach federal judges took from about 1945 to 1995, when they resisted the urge to poke around under the hood and instead let Congress and the president decide the appropriate bounds of federal power. But our current judiciary, and the spirit of this Slate project to fix the Constitution, require more affirmative steps. So let’s rewrite the Commerce Clause this way:

Congress shall have the power to regulate matters that are in the national interest, but federal enactments shall pre-empt state law only in instances of direct conflict, or where the pre-emptive force of such enactment is made explicit by statute, or is based on a considered finding by an agency to whom Congress has delegated the authority to make such determination.

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