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The Clothes Have No Emperor, Or, Cabining the Commerce Clause

San Diego Law Review, Vol. 41, 2004

37 Pages Posted: 16 Apr 2004  

John T. Valauri

Northern Kentucky University - Salmon P. Chase College of Law

Abstract

According to received opinion in constitutional criticism, the Supreme Court's current commerce power doctrine, as formulated in its Lopez and Morrison decisions, is a mess. This doctrine, say the critics, is inconsistent both with other post-New Deal case law and with John Marshall's classic doctrine set forth in cases like McCulloch and Gibbons. It resembles nothing so much as the doctrine of pre-New Deal cases like Hammer v. Dagenhart, the Lochner of commerce cases. As a result, these opponents of the Court also reject the theory of federalism which accompanies, and arguably motivates, the Court's commerce power doctrine.

But received opinion here is wrong. The Court's current commerce power doctrine is consistent with both other post-New Deal cases and with Marshall's universally praised opinions, while it is no kin to Hammer and its like. How can all these commentators be so wrong? Mainly because they and our legal culture have forgotten the doctrine of implied congressional powers formulated by Hamilton, Marshall (especially in McCulloch), and Story (as well as the notion of federalism that goes along with it). Under this doctrine, congressional power over the channels and instrumentalities of interstate commerce is plenary, while the power under the substantial effects test is only telic (means-ends limited). In this way, plenary congressional commerce power is vindicated, yet federalism is maintained. And the Court's current commerce power doctrine finds a better justification from some old federalists.

Keywords: commerce clause, federalism, constitutional law, necessary and proper clause

Suggested Citation

Valauri, John T., The Clothes Have No Emperor, Or, Cabining the Commerce Clause. San Diego Law Review, Vol. 41, 2004. Available at SSRN: https://ssrn.com/abstract=531582

John T. Valauri (Contact Author)

Northern Kentucky University - Salmon P. Chase College of Law ( email )

Nunn Hall
Highland Heights, KY 41099
United States
859-572-5387 (Phone)

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