Document Type

Symposium

Publication Date

1-1995

Abstract

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.;' 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 andbelievers 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.

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