A Critique of the Narrow Interpretation of the Commerce Clause

Abstract:     
From 1937 to 1994, the Supreme Court rejected every challenge to Commerce Clause legislation. However, beginning in 1995 with U.S. v. Lopez the Court began to take a narrower view of the Commerce Clause, striking down federal legislation with more frequency. Professors Pushaw and Nelson assert that an expansive view of the Commerce Clause is more consistent with the Framers’ intent, and they offer three arguments to support their position. First, while the core definition of “commerce” has always been the trading and transportation of merchandise, this was not the exclusive meaning conveyed in the Commerce Clause. Rather, that word encompassed other activities intended for the marketplace, such as the production of goods and the provision of services. Second, the phrase “among the several States” meant not merely “between people of different states” but also “within a state but affecting other states.” Third, “to regulate” embraces not simply rules that affirmatively direct conduct but also prohibitions. Under this approach, the only congressional actions that should be invalidated as inconsistent with the Commerce Clause are attempts to legislate local moral, cultural and social issues that have no commercial component, including many crimes. A narrower approach to the Commerce Clause would unset our constitutional system and the settled expectations of almost all Americans.

In this essay, Professors Pushaw and Nelson build upon their prior analysis from their 1999 article Rethinking the Commerce Clause: Applying First Principles to Uphold Federal Commercial Regulation but Preserve State Control over Social Issues, 85 Iowa L. Rev. 1 and respond to Professor Randy E. Barnett’s arguments in The Original Meaning of the Commerce Clause, 68 U. of Chi. L. Rev. 101 (2001).

Number of Pages in PDF File: 26

Keywords: Commerce Clause, U.S. v. Lopez

JEL Classification: K29

Accepted Paper Series