commerce clause question

[Sean Wilson]

Doug and David:
 
I think there are two mistakes people can make about this issue. The first is to assume that the current interpretation of the commerce clause is simply an extension of the past into modernity, as if a pair of pants is taken out to fit a much larger waistline. It is not the case, for example, that the clause's power in agrarian society has simply been naturally extended into what is now a completely interdependent marketplace. To see why this is so, consider the following:
 
1. The mischief that gives life to the current regime could be used to do the same thing for any other enumerated power. For example, take the Post Office power. Doesn't the local consumption of wheat, in theory, if done in the aggregate -- and if Congress so finds by a rational basis test -- affect the Post Office somehow? Surely it has some affect on communications of some sort. Hence, the wheat regulation in Wickard is an exercise of the Post Office power. Does it affect Bankruptcy if Congress says it does or if you can theorize it in a hypothetical aggregate? Well then it must be a valid use of the Bankruptcy power. If it affects the tax and spending power, well then there you go. My point is this: in no way can a set of enumerated powers be lawfully discharged using a "hypothetical affect" or rational basis test. Go give your kid a list of responsibilities while you are away and see if you interpret compliance that way.
 
2. What is really being said here is not that the commerce clause has been "translated;" it is that Section 8 has been abandoned. But it has been abandoned not because the economy simply became more complicated or the world more interdependent -- but rather because the original configuration of power between the feds and the states could not survive in a post-agrarian world. It has nothing to do with economics per se; it has to do with modernity and society (a broader idea).
 
3. But here is what my problem is: it does not follow that just because the original power configuration from agrarian society is no longer workable that there should not be SOME honest transition of unamended constitutional commands into the new world. Surely, there is SOMETHING meaningful that Congress cannot do under Section 8 that would allow both for more integrity to the words of law without threatening the operation of modern society. I can think myself of many innovative things to share here, but the mail is already too long. 
 
The second mistake people make in this area is to assume that this is about originalism. I am most surely not an originalist of even the language-game variety. This is an issue about whether you want "constitutionalism" in section 8 or a parliamentary kind of metaphysical constitution (constitution as fortitude in the polity or as an hegemony). It is an issue about being judicious (rather than licentious or clueless) about the translation of law into fundamentally changed circumstances. It is an issue about whether you want something more in American constitutionalism (in section 8) other than the fiction of law hiding behind an aggregation and rational-basis rhetoric. This is not good law, no matter that it is or is not "originalist." 
 
Dr. Sean Wilson, Esq. 
Penn State University
Website: http://ludwig.squarespace.com/home/
Email discussion group:  http://groups.yahoo.com/group/TheLudwigGroup 
SSRN papers: http://ssrn.com/author=596860
Conference papers: http://ludwig.squarespace.com/research-agenda/


 
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