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

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