A Critique of the Narrow Interpretation of the Commerce Clause

26 Pages Posted: 16 Oct 2009  

Robert J. Pushaw

Pepperdine University - School of Law

Grant Nelson

Pepperdine University - School of Law

Date Written: 2002

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).

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

JEL Classification: K29

Suggested Citation

Pushaw, Robert J. and Nelson, Grant, A Critique of the Narrow Interpretation of the Commerce Clause (2002). Northwestern University Law Review, Vol. 96, 2002. Available at SSRN: https://ssrn.com/abstract=1489611

Robert J. Pushaw (Contact Author)

Pepperdine University - School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States
(310) 506-6318 (Phone)

Grant S. Nelson

Pepperdine University - School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

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