The Limits of the Interstate Commerce Power: How to Decide the Close Cases

48 Pages Posted: 30 Sep 2019 Last revised: 2 Oct 2019

See all articles by R. George Wright

R. George Wright

Indiana University Robert H. McKinney School of Law

Date Written: September 19, 2019

Abstract

In the many close Commerce Clause cases, the courts must routinely confront, or else ignore, multiple problems of vagueness; of what kinds and degrees of effects on interstate commerce are constitutionally required in a given case; of how to meaningfully distinguish between 'active' and 'passive' involvement with interstate commerce; and of when and how to aggregate minimal effects on interstate commerce into a somehow substantial overall effect. Until the courts arrive at some appropriate clarification of these unresolved constitutional uncertainties, courts are better advised to direct their focus elsewhere when addressing close Commerce Clause power cases.

Specifically, courts in such cases should consider whether the case circumstances detectably evoke a sense of the crucial values underlying any fundamental constitutional or human right. Violent bias-motivated attacks present the clearest such cases, and those cases should ordinarily be held to fall within the scope of the Commerce Clause power. Such cases afford the courts an opportunity to at least symbolically or expressively validate, if not to materially advance and promote, national-level policy values of the highest order. On the other hand, if a close Commerce Clause case evidently bears no such detectable relationship to any fundamental constitutional or human right, the courts should normally accommodate instead the values and interests served by federalism, and hold the case to fall outside the scope of the Commerce Clause power.

Keywords: interstate comerce, commerce clause, Wickard v. Filburn, fundamental constitutional rights, human rights, federalism

JEL Classification: K00, K40

Suggested Citation

Wright, R. George, The Limits of the Interstate Commerce Power: How to Decide the Close Cases (September 19, 2019). Indiana University Robert H. McKinney School of Law Research Paper No. 2019-8. Available at SSRN: https://ssrn.com/abstract=3456867 or http://dx.doi.org/10.2139/ssrn.3456867

R. George Wright (Contact Author)

Indiana University Robert H. McKinney School of Law ( email )

530 West New York Street
Indianapolis, IN 46202
United States

Here is the Coronavirus
related research on SSRN

Paper statistics

Downloads
8
Abstract Views
143
PlumX Metrics