an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
I have placed a draft of my new paper, Commerce, on SSRN. Here is the abstract:
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. Non-originalists, in turn, point to these difficulties as a refutation of orignalist 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 to interact with each other 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 anti-discrimination 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.