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

Posted: 21 Jul 2003  

Grant Nelson

Pepperdine University - School of Law

Robert J. Pushaw

Pepperdine University - School of Law

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Abstract

This article states an overview and analysis of the text and history of the Commerce Clause, focusing on its drafting and ratification history, and its precedent. The article identifies the defects of existing judicial and scholarly analyses. It finds all existing approaches to the Commerce Clause inadequate. The article proposes rules that are rooted in the text and history of the Commerce Clause, whose application will have the incidental and salutary effect of promoting the Federalist vision of federalism: that uniformity is beneficial in commerce but detrimental as to social, cultural, and moral issues. The second part of the article analyses whether Congress has regulated "commerce" that has a commercial effect in more than a single state-arguing and defending the authors' approach and formulating a new Commerce Clause standard. The third part of the article demonstrates how the application of the authors' standard for Commerce Clause legislation would greatly clarify: (1) the Supreme Court's current Commerce Clause precedent; (2) the lower court's analysis of countless federal statutes thrown into doubt by Lopez; and (3) Congress's consideration of new legislation in areas ranging from mortgages to same-sex marriages. The article concludes that the entire jurisprudential structure of the Commerce Clause should be dismantled and rebuilt from the ground up, using classical Federalist principles - thus reconstructing the Commerce Clause to be built on the Constitution.

Keywords: Commerce Clause, regulate commerce, Constitutional structure, McCulloch v. Maryland, Gibbons v. Ogden, substantial effects test, United States v. Lopez, Rational Basis Test, channels and instrumentalities, cultural federalism, Federal Uniform Commercial Code, Federal Real Estate Security Code, Federal Probate Code, same-sex marriage

JEL Classification: A13, K00, K1, K10, K19

Suggested Citation

Nelson, Grant and Pushaw, Robert J., Rethinking the Commerce Clause: Applying First Principles to Uphold Federal Commercial Regulations But Preserve State Control Over Social Issues. Iowa Law Review, Vol. 85, No. 1, October 1999. Available at SSRN: https://ssrn.com/abstract=382562

Grant S. Nelson (Contact Author)

Pepperdine University - School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

Robert J. Pushaw

Pepperdine University - School of Law ( email )

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

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