Rethinking the Commerce Clause: Applying First Principles to Uphold Federal Commercial Regulations but Preserve State Control Over Social Issues

Abstract:     
A careful examination of the Commerce Clause's language, history, and pre-1937 precedent reveals that the Clause sets forth two distinct requirements. First, Congress must be regulating "commerce," which encompasses all market-oriented activities--including the sale of goods and services, production, commercial transportation, employment, insurance, and banking. Second, this "commerce" must have a commercial effect in at least one other state; such commercial impacts have occurred almost inevitably as America's economy has become nationally integrated. The Court's adoption of this two-part test would reinforce the basic (and still-relevant) Federalist principle that uniformity is beneficial in commerce but detrimental for social, cultural, and moral affairs. Application of this test would result in upholding nearly all federal regulation of commercial activity and its byproducts (e.g., the environmental effects of commercial production), but in invalidating congressional attempts to legislate purely cultural, social, or moral issues that involve no voluntary commercial transaction. To take two examples from cases currently pending, the Court should strike down the Violence Against Women Act and the Federal Arson Statute, for the simple reason that neither gender-motivated violence nor arson are "commerce." The article also analyzes dozens of other statutes enacted under the Commerce Clause (e.g., laws regulating civil rights and crime) and several potential subjects of regulation, ranging from mortgages to same-sex marriage.

JEL Classification: K23

Accepted Paper Series