Essay by David G. Wille
A fresh look at the Commerce Clause is justified. Too often, evolving jurisprudence on a constitutional provision results in various legal tests which take on a life of their own, soon usurping the constitutional text in importance. The “substantial effects” test under the Commerce Clause is just one example. This test emerged from a complicated series of Supreme Court decisions. By contrast, the principles underlying the Commerce Clause and the concepts of enumerated powers and federalism are much more straightforward. At some point, the Supreme Court may find it helpful to return to first principles to see whether its test has departed from the intent of the Framers. A reexamination of first principles reveals that modern Commerce Clause jurisprudence has departed from those principles.
Justice Kennedy's concurrence in Lopez recognized that federalism was the unique contribution of the Framers to political science and political theory. The Founding Fathers feared that a powerful national government “eventually would eliminate the States as viable political entities.” This contribution to political theory regarding federalism is insightful. As national power has risen, local power has ebbed. In recent years, Congress has become increasingly less representative of state and local interests and more responsive to national constituencies. State officials, knowing that Congress will eventually make decisions on difficult issues, are reluctant to tackle those issues for fear of the political consequences. As a result, Congress continues to exercise more powers, many arguably not granted to it in the Constitution.
In some respects, the pendulum now appears to be swinging the other way. Congress is at least paying lip service to returning power to the States. At the same time, the inability of local governments to solve major problems confronting the nation, such as crime, drug abuse, and health care costs, has led to pressure for national solutions. The Gun-Free School Zones Act is one manifestation of this pressure. More laws are likely to be passed at the federal level that encroach on traditionally local areas of control. As this expansion stretches the bounds of manageability within the constitutional scheme, the Supreme Court may come to view its role as protecting the “Framers”' view of federalism. In such a case, the Court may accept Justice Thomas's invitation to reevaluate the Commerce Clause. If and when it does, it will, true to the tradition of the institution, formulate a new test of constitutionality. This Essay proposes such a test. The proposed test accepts the realities of modern federal power, yet attempts to preserve core areas of state control.
The discussion below reexamines the reasoning behind the modern interpretation of the Commerce Clause. The ideas presented are not complex; the analysis centers around basic principles which underlie the Constitution. Part I discusses how current Commerce Clause doctrine departs from the meaning of the Constitution. Specifically, it demonstrates how current doctrine departs from the text of the Constitution as well as its structure and the intent behind its provisions. Part II discusses the overbroad interpretation of the Necessary and Proper Clause underlying the vast expansion of federal power under the Commerce Clause. Part III demonstrates why rational basis review under the Commerce Clause conflicts with the fundamental design of the Constitution. Finally, Part IV examines the inconsistency between the interpretation of the Commerce Clause in jurisdictional cases and its interpretation in dormant Commerce Clause cases. Part IV concludes by offering a new constitutional test that would subject federal legislation to strict scrutiny under the Commerce Clause in certain instances. I conclude that the proposed test would harmonize Commerce Clause doctrine with the Framers' intent.
About the Author
David G. Wille. Partner, Baker & Botts (Dallas, Texas). B.S.1989, M.S.1990, University of Wisconsin-Madison; I.D.1992, University of Michigan Law School. Mr. Wille is also a fellow with the Texas Justice Foundation.
Citation
70 Tul. L. Rev. 1069 (1996)