General Jurisdiction of the US. and "commerce"

[Calvin Johnson]

        I suspect we have to start thinking of the general  jurisdiction of the
federal government as found in clause 1, "to provide for the common defence
and general welfare" rather than in the commerce clause.  The Articles of
Confederation allowed expenses for common defense and general welfare to be
charged to common fund if 2/3 if the states approved and the C just got rid
of the supermajority requirement.   There are lots of contemporaneous
references where regulation and tax are used interchangeably, and no viable
theory or argument of the time that nonspending activity by government was
to be limited in ways in which spending activity would not.   It would be
terrible to cut off especially effective nonspending governmetn  strategies
(eg auctions).  There are also fair number of 1787-1788 cites telling us
that broad common defense adn generla welfare power is consistent with
"enumerated power;"  if Congress steps beyond common defense and general
welfare, Noah Webster tells us, that would be usurpation.
        There were lots of loose promises that COngress would never do anything
that Anti-Federalists woudl disapprove of, to pull in the outlyer states.
But the glory of textualism is that we can exclude such whining, under a
kind of parole evidence rule, and raise clause 1 to its true glory.


 At 10:58 AM 09/09/2000 -0700, you wrote:
>Somewhat to my surprise, I am so far finding Lopez and Morrison persuasive
>and sensible as commerce power decisions.  (I think Morrison may well have
>been wrongly decided under Congress's 14th amendment powers, but then I have
>a much broader view than current Court doctrine as to federal powers to
>enforce the 14th.)  Granted, it is very difficult to draw coherent and
>principled judicially enforceable distinctions in this area, between
>"interstate" and "local," "commercial" and "non-commercial," etc.  Yet if
>text means anything, and if judicial review is appropriate at all in
>federalism cases (granting the respectable, though in my view mistaken,
>school of thought arguing that we can just trust the political process in
>this area), then courts have to come up with and enforce some concept of
>what is "commerce between the states" and what is not, which necessarily
>involves some concept of what is "commercial/economic" or not.  And why is
>that inherently more difficult or less legitimate than deciding and
>enforcing what "process" is "due" or what "speech" is "free"?
>
>As to precedent, the Lopez/Morrison majority did not overrule (or even
>question any critical part of the supporting analysis of) any Supreme Court
>commerce power precedents.  Darby, Wickard, Heart of Atlanta, McClung,
>Perez, etc. continue in force.  On the contrary, Lopez/Morrison dealt with
>congressional acts that seem to push the outer limits of federal power in
>truly startling and unprecedented ways.  As a policy matter, laws like those
>struck down in Lopez and Morrison may well be desirable (perhaps at the
>state level).  But Congress's blithe disregard these days (across the
>political spectrum) for any concept of the proper sphere of federal power,
>the tendency to leap to a federal solution of almost every conceivable
>problem, and then cast around for any plausible "commerce" hook to hang it
>from, disturb me far more than the rather mild and symbolic "states-rights"
>revanchism suggested by Lopez/Morrison.  Rehnquist's message seems to me
>along the lines of "all right, Congress, you can keep the territory you've
>claimed, but please, for heaven's sake, just don't push us any farther!"
>
>By contrast, the Lopez/Morrison dissenters have made some astonishingly
>far-reaching and in my view unprecedented (for the Court) statements, eg,
>that Congress probably has authority over "virtually every kind of activity,
>no matter how local," and that it is "close to impossible for courts to
>develop meaningful subject-matter categories that would exclude some kinds
>of local activities" from the commerce power.  See Breyer, joined by
>Stevens, Souter, and Ginsburg, in Morrison.  I don't think any Court
>majority, not even in Darby, Wickard, Heart of Atlanta, McClung, etc., ever
>made such sweeping claims (and it would have stirred up quite a bit more
>controversy if they had).  Quite the contrary, the pre-Lopez modern cases
>emphasized that the federal commerce power, though very broad, remains
>subject to very significant limits and meaningful judicial review in various
>ways.  While the dissenters also would not have had to overrule any specific
>cases (mostly because Congress had rarely been this adventurous before in
>stretching federal powers), they would have extended, drastically in my
>view, the reach and rationale of the earlier cases.
>
>So who's really respecting precedent more?
>
>Bryan Wildenthal, Thomas Jefferson School of Law
>

Calvin H. Johnson
Andrews & Kurth Centennial Professor of Law
The University of Texas School of Law
727 E. 26th St.
Austin, TX  78705
(512) 232-1306  (voice)
FAX: (512) 232-2399
Website:  http://www.utexas.edu/law/faculty/calvinjohnson