Guillen and Gullibility: Piercing the Surface of Commerce Clause Doctrine

48 Pages Posted: 6 Aug 2004

See all articles by Mitchell N. Berman

Mitchell N. Berman

University of Pennsylvania Carey Law School


In Pierce County v. Guillen, the Supreme Court's most recent Commerce Clause decision, the Court upheld a federal law that protects information compiled or collected by states and localities in connection with federal highway safety programs from being discovered or admitted into evidence in state or federal trials. A short and unanimous decision, Guillen has gone almost entirely unnoticed. This article aims to rectify that oversight. Very simply, Guillen is not the gimme that its length, tone, and reception all conspire to suggest. At the heart of the case is a puzzle. And attempts to unravel that puzzle may substantially aid our collective understandings both of the likely trajectory of evolving Commerce Clause jurisprudence and of the conceptual structure of constitutional adjudication.

The Guillen puzzle emerges against the background supplied by the Rehnquist Court's leading Commerce Clause decisions - United States v. Lopez, and United States v. Morrison. In short, Lopez held the federal Gun-Free School Zone Act (GFSZA) objectionable on at least two bases: that it regulated non-commercial activity - gun possession - and interfered with traditional areas of state sovereignty - education. Morrison struck down the civil remedies provision of the Violence Against Women Act (VAWA) also because it regulated non-commercial activity - gender-motivated violence - and interfered with traditional areas of state sovereignty - criminal law. The statute at issue in Guillen regulated apparently non-commercial activity - the discovery and introduction of evidence in civil litigation - and interfered with a traditional area of state sovereignty - state judicial processes. One might have suspected, therefore, that it would fall on the authority of Lopez and Morrison. The puzzle is why it did not.

The central challenge confronting the Court's Commerce Clause jurisprudence for much of the nation's history has been to steer a path between conferring upon Congress a de facto police power and hamstringing Congress from meeting the needs of a vibrant national economy. This is no easy task. Too often, though, the Supreme Court and its commentators have jumped straight into the project of doctrine-making without pausing to consider what the constitutional meaning is that the in-court doctrine should be designed to implement. This article proposes that the key to resolving the Guillen puzzle might reside in the Court's inchoate views on just that analytically prior question: what does the Commerce Clause mean? That is, although the statute at issue in Guillen was hard to distinguish from the GFSZA and VAWA's civil remedies provision when measured against the Commerce Clause doctrine that Lopez and Morrison together birthed, it might be distinguishable when measured against what a majority of the Court understands the Commerce Clause to mean.

I have recently argued elsewhere that the Court's project of developing sound constitutional doctrine would often benefit from a more careful distinction between what the Court understands the Constitution to mean and the decision rules crafted to instruct courts how to determine whether that meaning is satisfied. Insofar as Guillen may help scholars, judges and lawyers gain a better grasp on the distinction between Court-announced meaning and Court-crafted decision rules in the Commerce Clause context, it may yet have substantial importance notwithstanding its modest dress.

Keywords: Commerce Clause, Constitutional Doctrine, Purpose Scrutiny, Legislative Purpose

Suggested Citation

Berman, Mitchell N., Guillen and Gullibility: Piercing the Surface of Commerce Clause Doctrine. U of Texas Law, Public Law Research Paper No. 68, Available at SSRN:

Mitchell N. Berman (Contact Author)

University of Pennsylvania Carey Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

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