A critique of the narrow interpretation of the commerce clause

Northwestern University Law Review

Volumn 96, Issue 2, 2002, Pages 695-718

  Pushaw Jr , Robert J ^a   Nelson, Grant S ^a  

^a NONE

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EID: 0038891886     PISSN: 00293571     EISSN: None     Source Type: Journal    
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References (169)

1. U.S. CONST. art. I, § 8, cl. 3.
2. See Grant S. Nelson & Robert J. Pushaw, Jr., Rethinking the Commerce Clause: Applying First Principles to Uphold Federal Commercial Regulations but Preserve State Control over Social Issues, 85 IOWA L. REV. 1, 79-88, 119-63 (1999) (examining the relevant statutes).
3. See id. at 10-11, 79-88 (summarizing the cases applying these three theories).
4. 514 U.S. 549 (1995).
5. Id. at 602-03 (Stevens, J., dissenting); id. at 603-15 (Souter, J., dissenting); id. at 615-44 (Breyer, J., dissenting). Justice Ginsburg joined these opinions.
6. Id. at 556-68.
7. Id. at 584-602.
8. 529 U.S. 598, 627 (2000) (Thomas, J., concurring). 9 Id. at 600-19.
9. See, e.g., Carter v. Carter Coal Co., 298 U.S. 238, 297-310 (1936) (citing cases).
10. See Albert S. Abel, The Commerce Clause in the Constitutional Convention and in Contemporary Comment, 25 MINN. L. REV. 432 (1941); Raoul Berger, Judicial Manipulation of the Commerce Clause, 74 TEX. L. REV. 695 (1996); Richard A. Epstein, The Proper Scope of the Commerce Power 73 VA. L. REV. 1387 (1987).
11. See Albert S. Abel, The Commerce Clause in the Constitutional Convention and in Contemporary Comment, 25 MINN. L. REV. 432 (1941); Raoul Berger, Judicial Manipulation of the Commerce Clause, 74 TEX. L. REV. 695 (1996); Richard A. Epstein, The Proper Scope of the Commerce Power 73 VA. L. REV. 1387 (1987).
12. See Albert S. Abel, The Commerce Clause in the Constitutional Convention and in Contemporary Comment, 25 MINN. L. REV. 432 (1941); Raoul Berger, Judicial Manipulation of the Commerce Clause, 74 TEX. L. REV. 695 (1996); Richard A. Epstein, The Proper Scope of the Commerce Power 73 VA. L. REV. 1387 (1987).
13. Randy E. Barnett, The Original Meaning of the Commerce Clause 68 U. CHI. L. REV. 101 (2001).
14. See WALTER H. HAMILTON & DOUGLASS ADAIR, THE POWER TO GOVERN (1937); WILLIAM WINSLOW CROSSKEY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE UNITED STATES (1953); see also Herbert Hovenkamp, Judicial Restraint and Constitutional Federalism: The Supreme Court's Lopez and Seminole Tribe Decisions, 96 COLUM. L. REV. 2213, 2229-30 (1996) (endorsing a comprehensive definition of "commerce").
15. See WALTER H. HAMILTON & DOUGLASS ADAIR, THE POWER TO GOVERN (1937); WILLIAM WINSLOW CROSSKEY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE UNITED STATES (1953); see also Herbert Hovenkamp, Judicial Restraint and Constitutional Federalism: The Supreme Court's Lopez and Seminole Tribe Decisions, 96 COLUM. L. REV. 2213, 2229-30 (1996) (endorsing a comprehensive definition of "commerce").
16. See WALTER H. HAMILTON & DOUGLASS ADAIR, THE POWER TO GOVERN (1937); WILLIAM WINSLOW CROSSKEY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE UNITED STATES (1953); see also Herbert Hovenkamp, Judicial Restraint and Constitutional Federalism: The Supreme Court's Lopez and Seminole Tribe Decisions, 96 COLUM. L. REV. 2213, 2229-30 (1996) (endorsing a comprehensive definition of "commerce").
17. Nelson & Pushaw, supra note 2.
18. Barnett, supra note 12, at 105, 107-08, 111-13, 131. Professor Barnett concentrates solely on the usage of these words during the drafting and ratification debates. His decision not to challenge our evidence of their ordinary (and broader) meanings outside this context, however, does not imply that he accepts our position. See id. at 131 n.154 (declaring that he is "somewhat skeptical of [our] contrary claim").
19. See id. at 112, 114, 131.
20. See id. at 114 & n.57 (noting our acknowledgment that the primary definition of "commerce" was "trade" and that some Americans may have thought the Constitution incorporated only this limited meaning).
21. Nelson & Pushaw, supra note 2, at 9-10, 13-42. Professor Barnett consistently characterizes our main thesis to be that "commerce originally referred to any 'gainful activity.'" Barnett, supra note 12, at 102; see also id. at 103-04, 112-13, 115-16, 119 n.82, 120, 124, 129, 131-33, 136. But we contended, more precisely, that "'commerce' meant all gainful activities intended for the marketplace, as distinguished from those undertaken solely for personal or home use, such as growing food for one's family." Nelson & Pushaw, supra note 2, at 14-15; see also id. at 9-10, 17 n.64, 19, 21, 36-37, 41, 82, 101-02, 107-10, 119-31, 137, 159, 169. Thus, for example, even if raising vegetables or making crafts could be deemed "gainful activity," they are only "commerce" if those items will be sold in the market. We want to emphasize, however, that this is a minor quibble, and that Professor Barnett otherwise has set forth our arguments accurately.
22. Nelson & Pushaw, supra note 2, at 42-49.
23. See id. at 13, 17, 36.
24. For a summary and defense of this methodology, see id. at 8-9; Robert J. Pushaw, Jr., Congressional Power over Federal Court Jurisdiction: A Defense of the Neo-Federalist Interpretation of Article III, 1997 B.Y.U. L. REV. 847, 847-50, 854-55, 895-96; Robert J. Pushaw, Jr., Justiciability and Separation of Powers: A Neo-Federalist Approach, 81 CORNELL L. REV. 393, 397-99,454,470-72 ( 1996).
25. For a summary and defense of this methodology, see id. at 8-9; Robert J. Pushaw, Jr., Congressional Power over Federal Court Jurisdiction: A Defense of the Neo-Federalist Interpretation of Article III, 1997 B.Y.U. L. REV. 847, 847-50, 854-55, 895-96; Robert J. Pushaw, Jr., Justiciability and Separation of Powers: A Neo-Federalist Approach, 81 CORNELL L. REV. 393, 397-99,454,470-72 ( 1996).
26. See Nelson & Pushaw, supra note 2, at 11-12, 26-30, 113-19.
27. Id. at 9.
28. See id. at 10-11, 110-12. [T]he Commerce Clause retains the same legal meaning today that it had in 1787. What has changed is factual reality: As America has moved from an overwhelmingly agrarian economy rooted in self-sufficient households to an integrated national market economy based on manufacturing and service, the scope of the Clause has commensurately increased. Id. at 9 n.34.
29. See id. at 11, 110.
30. See id. at 9-12, 107-13, 119-27, 136-52, 158-63.
31. See id. at 10-12, 109-10, 159-61.
32. See generally id. at 9-13, 107-73. We would reject the Court's attempt to sustain such regulations under three of its existing lines of precedent. First, the "channels of interstate commerce" cases effectively enable Congress to exercise absolute control over any person or thing that crosses a state line for any purpose. See id. at 10-11, 74-79, 84-85, 109, 112, 120, 123-31, 133, 139-40, 143, 153, 159-60, 173. Second, the "instrumentalities" doctrine permits federal regulation of all vehicles (including people and items inside), regardless of whether they move interstate. See id. at 66-67, 71-74, 112, 120, 131, 140, 157, 159. Third, precedent allowing Congress to regulate any human activity which, considered in the aggregate, "substantially affects" interstate commerce has saved many statutes that reach noncommercial conduct, in-state activities, or both. See id. at 79-83, 86-88, 112, 124, 137, 142, 150, 155-56. Thus, application of our test would sound the death knell for certain well established laws. Examples include the Mann Act prohibition against taking a woman across state lines for "immoral" purposes, the Agricultural Adjustment Act's coverage of those who produce food intended solely for family consumption, and the provisions of environmental laws that sweep in noncommercial activities (like barbecuing at home). See id. at 109-10, 120-22, 127-29, 145-47.
33. Under our thesis, the Court would not have to change the results of any of its major Commerce Clause decisions, but only their rationale. Similarly, Congress's vast power to regulate interstate "commerce" would remain intact. Rather, it merely would be prevented from asserting authority, nowhere granted in the Commerce Clause, to enact symbolic social legislation that usually replicates state law.
34. Barnett, supra note 12, at 106.
35. Id. at 104-05, 112-47.
36. Barnett distinguishes "interpretation" (determining the meaning of the words written in the Constitution) from "construction" (filling in gaps when the original constitutional meaning is "underdeterminate" in yielding a rule of law to be applied in particular cases). Id. at 108-10. He explicitly does not reach the question of how the original meaning of the Commerce Clause should be construed today. Id. at 111.
37. The Court's adoption of Barnett's interpretation would require it to reverse all of its major Commerce Clause decisions and to strike down nearly every federal statute enacted under that Clause, as we will demonstrate infra Part III.
38. Barnett, supra note 12, at 105-07.
39. See id. at 106-07. Again, Barnett's decision not to contest our definitions of the relevant terms in everyday eighteenth-century speech and writings does not necessarily suggest that he agrees with us. Rather, further research could lead him to the conclusion that these words conveyed the same single narrow meaning that he believes all the Framers and Ratifiers held.
40. 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at xi-xii (Max Farrand ed., 1911) (noting the Framers' vote to keep their deliberations confidential); Robert J. Pushaw, Jr., Article III's Case/Controversy Distinction and the Dual Functions of Federal Courts, 69 NOTRE DAME L. REV. 447, 470-71 (1994) (arguing that this decision made the language of the Constitution paramount in interpretation).
41. 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at xi-xii (Max Farrand ed., 1911) (noting the Framers' vote to keep their deliberations confidential); Robert J. Pushaw, Jr., Article III's Case/Controversy Distinction and the Dual Functions of Federal Courts, 69 NOTRE DAME L. REV. 447, 470-71 (1994) (arguing that this decision made the language of the Constitution paramount in interpretation).
42. Of course, if Barnett is correct that everyone at the Convention used "commerce," "among," and "regulate" only in their narrowest senses, and if ordinary citizens widely shared such understandings, then the Framers' choice of language would become far more defensible.
43. See CROSSKEY, supra note 13, at 50-292; Nelson & Pushaw, supra note 2, at 9-10, 14-21, 35-42.
44. See Barnett, supra note 12, at 104-05, 111-31.
45. Id. at 131. He continues: "I only dispute, on the basis of the evidence of usage here and the clash of interests that existed in the country at the time, that a government of so unlimited a power was adopted in 1789." Id.; see also id. at 112 (acknowledging that "commerce" could mean merely "trade" or could encompass a far greater range of business activities).
46. See Nelson & Pushaw, supra note 2, at 17 n.64.
47. See Barnett, supra note 12, at 132-39.
48. Nelson & Pushaw, supra note 2, at 42 n. 172 (citations omitted).
49. Id. at 43. Barnett argues, however, that our evidence that the word "among" generally had a broader meaning "is insufficient . . . to establish that the appearance of 'among' in the Commerce Clause refers to something other than commerce that takes place 'between state and state.'" Barnett, supra note 12, at 137 n.178; see also id. at 112 (to similar effect).
50. Barnett, supra note 12, at 132-39.
51. Nelson & Pushaw, supra note 2, at 42.
52. Id. at 13; see also id. at 9, 13, 17, 36-37, 52, 119, 140-41, 164 (using "regulate" synonymously with "govern").
53. See id. at 13, 17,36.
54. Barnett, supra note 12, at 146; see also id. at 139-44 (arguing that "regulate" does not generally include power to forbid an activity, except in the context of foreign commerce); id. at 112 (acknowledging that "to regulate" can be read expansively),
55. Professor Barnett anticipates this criticism, but maintains that "when a group of people agrees to use one word to connote, depending on the circumstances, two different meanings, they have objectively manifested their intentions, albeit in an awkward manner that makes the objective meaning of their words sometimes difficult to discern." Barnett, supra note 12, at 144-45 n.207.
56. Id. at 139.
57. Furthermore, legislative ingenuity could convert almost any positive regulation into a ban. To continue with our example, if Congress affirmatively required cigarette sellers to contribute $50 per pack sold to a public medical fund, that regulation would effectively prohibit such sales, except perhaps to very wealthy smokers.
58. See Barnett, supra note 12, at 143 & nn. 199-201.
59. Professor Barnett contends that Article I, section 9, clause 1 suggests only that Congress could enact prohibitory regulations concerning foreign commerce (such as the importation of slaves), not trade within the United States (including any trafficking in slaves). See id. at 143-44. He further claims that "the federal government clearly lacked the power to regulate the domestic slave trade." Id. at 143 n.202 (citing Groves v. Slaughter, 40 U.S. 449, 508 (1841) (Taney, J., concurring); 40 U.S. at 514 (Baldwin, J., concurring)). Justice Baldwin, however, expressed the opposite opinion: He argued that, as to those states that defined slaves as property, the Commerce Clause empowered Congress to regulate the interstate buying and selling of such articles of property. See Groves, 40 U.S. at 511-17 (Baldwin, J., concurring). In any event, the majority of the Court avoided this question by deciding the case on state-law grounds. See id. at 496-503. Barnett is on much firmer ground in concluding that "the southern states would never have ratified the Constitution if the power to regulate commerce among the states included the power to regulate the slave trade within a particular state." Barnett, supra note 12, at 134. And, putting aside any questions involving the slave trade, the Commerce Clause surely did not authorize Congress to regulate slavery itself, either affirmatively or by prohibition. Tolerating slavery was the price the North paid to make the Constitution palatable to the South. This compromise, however shameful, was an overarching structural feature of the original Constitution, and all individual constitutional provisions (including the Commerce Clause) had to be interpreted in a way that did not frustrate this basic principle.
60. Moreover, Barnett nowhere mentions our evidence that, in the eighteenth century, writers placed the phrase "to regulate" before "commerce" when they intended to signify the usual expansive meaning of the latter term. See Nelson & Pushaw, supra note 2, at 17.
61. Barnett, supra note 12, at 105. We find Barnett's terminology confusing, because he collapses the "intent" of the Framers with the "understanding" of the Ratifiers.
62. See id. at 106-07.
63. Of course, most of the Ratifiers presumably "understood" the Constitution according to its every-day "meaning."
64. See supra note 36. See generally H. Jefferson Powell, The Original Understanding of Original Intent, 98 HARV. L. REV. 885 (1985).
65. See Nelson & Pushaw, supra note 2, at 8 n.33; see also Pushaw, supra note 36, at 449 & n.8 (acknowledging the difficulty of ascertaining original intent).
66. See Nelson & Pushaw, supra note 2, at 21-50; see also Robert J. Pushaw, Jr., Why the Supreme Court Never Gets Any "Dear John" Letters: Advisory Opinions in Historical Perspective, 87 GEO. L.J. 473, 494-95 (1998) (arguing that America's disastrous experiments with national and state governments during the 1780s renewed appreciation for many aspects of the English political system).
67. See Nelson &Pushaw, supra note 2, at 17-18, 34-35, 49-50 (setting forth statements by Madison, Hamilton, Wilson, Jay, Ellsworth and others emphasizing the integral connection between commerce and international/military affairs); id. at 34 & nn.136-37, 37 & n.145 (demonstrating that leading Federalists thought that taxes could be used both to regulate commerce and to raise revenue).
68. See id. at 21, 25, 31-35.
69. Justice Thomas explicitly argued that "commerce" cannot be interpreted in a way that will overlap with other Article I powers such as bankruptcy. See United States v. Lopez, 514 U.S. 549, 588-89 (1995) (Thomas, J., concurring). Professor Barnett endorses Justice Thomas's opinion and occasionally alludes to this aspect of it. See Barnett, supra note 12, at 114, 118-19, 131.
70. Even one who conceded some redundancy in Article I might argue that the Commerce Clause should not be read so broadly as to swallow up some of the other enumerated grants. In our view, however, the drafters exercised proper caution in spelling out various distinct powers (e.g., bankruptcy and immigration), rather than leaving them to be implied from the more general conferral of authority "to regulate Commerce."
71. Barnett does not deny that the key words of the Commerce Clause are facially susceptible to two different interpretations. Given that fact, we believe that our more generous interpretation of the Commerce Clause is more consonant with the Framers' overall design.
72. See Barnett, supra note 12, at 111-46.
73. See Nelson & Pushaw, supra note 2, at 35-42; see also id. at 42 n.170 ("[E]ven if the Framers contemplated federal control only over the narrow slice of commerce that most preoccupied them (e.g., removing interstate trade barriers), they used language broad enough to enable Congress to regulate any commercial transactions that would affect the national interest.").
74. See Barnett, supra note 12, at 104-05, 114-16, 131.
75. Nelson & Pushaw, supra note 2, at 9 n.37.
76. Id. at 37 n.144. For similar acknowledgments, see id. at 15 & n.53, 17 & n.64; 101 n.478.
77. "I have found not a single example from the . . . [Convention and Ratification] proceedings that unambiguously used the broad meaning of 'commerce' and many instances where the context makes clear that the speaker intended a narrow meaning." Barnett, supra note 12, at 112. For similar assertions, see id. at 114.
78. See id. at 115-25; see also Nelson & Pushaw, supra note 2, at 41 n. 166 (conceding that this phraseology arguably "would have been superfluous if 'commerce' included prior productive activities").
79. Most pertinently, sometimes an umbrella term (like "commerce") appears alongside words that signify one of its specific aspects (like "manufacturing"). For instance, one might use the general word "government" to refer to the entire political structure or to the executive branch alone, as in the phrase "the government, Congress, and the courts." Such terminology would not prove that the speaker thought "Congress" or "the courts" were not part of "the government."
80. See Barnett, supra note 12, at 124. Although "commerce" and "trade" often were used interchangeably, the latter term was considered to be narrower and sometimes connoted shabbiness and vulgarity, as did the word "traffic." See Nelson & Pushaw, supra note 2, at 16 & nn.61-63.
81. Barnett, supra note 12, at 117, 121-23, 125-28.
82. See id. at 102-04, 112-25.
83. Id. at 125; see also id. at 123 ("Surely shipping was so closely identified with commerce because it was at that time the indispensable means for the movement of goods.").
84. See Nelson & Pushaw, supra note 2, at 9-10, 14-21, 35-42. For example, a manufacturer buys raw materials in the market, processes them into items for sale in the market, transports them to the market, and then sells them. Congress should be able to regulate as "commerce" this entire transaction, including the production phase. Any attempt to exclude production would have seemed strange to people in the eighteenth century, who often viewed "manufacturing" (i.e., transforming raw materials, including crops, into a finished product) as inseparable from the sale of that product. See id. at 15 & nn.53-54.
85. See id. at 15-16 (citing authors such as Smith, Defoe, and Postlethwayt); id. at 58-59 (quoting Marshall); id. at 40 n.164 (setting forth Pierce Butler's 1788 letter referring to fishing as a "lucrative branch of Trade"). Professor Barnett erroneously relies upon statements containing the "branches" metaphor as supporting his distinction between "commerce" and other economic activities. See. e.g., Barnett, supra note 12, at 128 n. 133 (invoking Marshall's opinion that "commerce" describes "commercial intercourse . . . in all its branches"); id. at 117 (citing Charles Turner's reference at the Massachusetts Convention to "navigation and commerce, and various branches of business thereon dependent").
86. THE FEDERALIST No. 11, at 71 (Alexander Hamilton) (Jacob E. Cooke ed., 1961), quoted in Nelson & Pushaw, supra note 2, at 45-46, and Barnett, supra note 12, at 115 (asserting that this remark demonstrates Hamilton's understanding that "commerce" and "production" were distinct). Along the same lines, during Ratification William Davie described "[c]ommerce" as "the nurse" of agriculture and manufacturing. See Barnett, supra note 12, at 121. Unlike Barnett, we interpret this usage as evidence of a unified conception of commerce.
87. 156 U.S. 1 (1895).
88. Id. at 2-9; see Barnett, supra note 12, at 129 (praising cases like Knight).
89. Knight, 156 U.S. at 18-46.
90. 247 U.S. 251 (1918).
91. See Nelson & Pushaw, supra note 2, at 68-71, 120-22 (criticizing those decisions for failing to recognize that "commerce" has always included "production").
92. 22 U.S. (9 Wheat.) 1 (1824). Our detailed analysis of Gibbons concluded that the Court reached the correct result through the proper rationale. See Nelson & Pushaw, supra note 2, at 57-63.
93. Gibbons, 22 U.S. at 1-3 (citing statute).
94. Id. at 189-90 (emphasis added).
95. Barnett, supra note 12, at 128 n.133; see also id. at 127 n.130 (asserting that the historical records provide "no evidence" that navigation was part of "commerce" because that term included the trade or exchange of services, not merely goods).
96. Gibbons, 22 U.S. at 189-90.
97. See Nelson & Pushaw, supra note 2, at 58-59 n.246. Although the Chief Justice properly limited his opinion to the activity at issue, navigation, Justice Johnson wrote a concurrence noting that "commerce" also extended to other "commodities" such as labor, services, communications, "mediums of exchange" like commercial paper, and related agencies and operations. Gibbons, 22 U.S. at 229-30.
98. Id. at 190, 216.
99. See Barnett, supra note 12, at 146 ("'Commerce' means the trade and exchange of goods (including the means of transporting them)."); id. at 101 (citing with approval Justice Thomas's claim that "'commerce' consisted of selling, buying, and bartering, as well as transporting for these purposes").
100. "[Ogden] denies that these boats were engaged in that [coasting] trade . . . . The boats of [Gibbons] were, we are told, employed in the transportation of passengers; and this is no part of that commerce which [C]ongress may regulate." Gibbons, 22 U.S. at 215.
101. Id. at 215-16; see also id. at 217 (declaring that vessel companies "consider the transportation of passengers as an important part of their business"); see Nelson & Pushaw, supra note 2, at 58 & n.247 (pointing out that the Court included within its definition of "commerce" the transportation of people for a fee).
102. We define "commerce" to include the voluntary provision of services for money. Thus, the pre-Civil War Congress could not regulate slave labor, which is unpaid involuntary servitude. Admittedly, slavery might be conceptualized as falling within that aspect of "commerce" that concerns production (e.g., of cotton and tobacco) intended for the marketplace. Although Congress could regulate these agricultural commodities, it could not reach slavery as such because of the fundamental tenet of the original Constitution that this institution was left to the states. See supra note 54.
103. Gibbons, 22 U.S. at 190.
104. See supra notes 80, 87, 89, 91-93 and accompanying text.
105. See Nelson & Pushaw, supra note 2, at 13-42. Of particular significance is the speech opening the Convention, in which Randolph argued that the national government had to be given power over "commerce" to promote not just trade but also "inland navigation," "agriculture," "manufactures," and "great national works." See THE RECORDS OF THE FEDERAL CONVENTION, supra note 36, at 26.
106. 2 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 57 (Jonathan Elliot ed., 1901) [hereinafter DEBATES IN THE SEVERAL STATE CONVENTIONS].
107. Barnett, supra note 12, at 118-19. He deploys the same argument to discount the relevance of Livingston's reference to Congress's power to "provide for the general interests of commerce and manufactures." Id. at 119 n.80.
108. See, e.g., THE FEDERALIST No. 35, at 219, 221 (Alexander Hamilton) (Jacob E. Cooke ed 1961). Mechanics and manufacturers . . . are well aware that [their] . . . arts furnish the materials of mercantile enterprise and industry. Many of them indeed are immediately connected with the operations of commerce. . . . Will not the merchant understand and be disposed to cultivate as far as may be proper the interests of the mechanic and manufacturing arts to which his commerce is so nearly allied? Id.; see also 3 THE WORKS OF ALEXANDER HAMILTON 322, 334, 339-40 (Henry Cabot Lodge ed., 1904) (reprinting Hamilton's 1780 letter describing manufacturing and banking as part of "commerce"). Barnett argues that Hamilton adhered to a narrow usage of "commerce" as "trade" when he advocated the Bank of the United States. Barnett, supra note 12, at 116. We believe, on the contrary, that Hamilton's writings in defense of the Bank unmistakably reveal his understanding that Congress's power to regulate "commerce" necessarily subsumed banking, navigation, manufacturing, and insurance as branches of commerce. See Pushaw & Nelson, supra note 2, at 51-52 (illustrating this point with numerous examples).
109. See, e.g., THE FEDERALIST No. 35, at 219, 221 (Alexander Hamilton) (Jacob E. Cooke ed 1961). Mechanics and manufacturers . . . are well aware that [their] . . . arts furnish the materials of mercantile enterprise and industry. Many of them indeed are immediately connected with the operations of commerce. . . . Will not the merchant understand and be disposed to cultivate as far as may be proper the interests of the mechanic and manufacturing arts to which his commerce is so nearly allied? Id.; see also 3 THE WORKS OF ALEXANDER HAMILTON 322, 334, 339-40 (Henry Cabot Lodge ed., 1904) (reprinting Hamilton's 1780 letter describing manufacturing and banking as part of "commerce"). Barnett argues that Hamilton adhered to a narrow usage of "commerce" as "trade" when he advocated the Bank of the United States. Barnett, supra note 12, at 116. We believe, on the contrary, that Hamilton's writings in defense of the Bank unmistakably reveal his understanding that Congress's power to regulate "commerce" necessarily subsumed banking, navigation, manufacturing, and insurance as branches of commerce. See Pushaw & Nelson, supra note 2, at 51-52 (illustrating this point with numerous examples).
110. 2 DEBATES IN THE SEVERAL STATE CONVENTIONS, supra note 101, at 245.
111. Barnett, supra note 12, at 119. Professor Barnett acknowledges that the statements of Smith and Hamilton might be interpreted as conveying the expansive meaning of commerce. Id. at 118.
112. Id. at 119.
113. Nelson & Pushaw, supra note 2, at 40 n.163 (citation omitted). 108 Gibbons, 22 U.S. at 189-90.
114. Indeed, Barnett later asserts that "'commercial' could be used in a narrow as well as a broad sense" to refer to trade only. Barnett, supra note 12, at 122 n.96. If so, then "commerce" and "commercial" were used as synonyms, as we assumed. 110 Id. at 120 (quoting 2 DEBATES IN THE SEVERAL STATE CONVENTIONS, supra note 101, at 492).
115. Wilson, who was considered Madison's equal in stature and influence, argued at the Convention that the Commerce Clause implicitly included power to create corporations (e.g., to build public works). See 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 36, at 616. Thus, he apparently thought that Congress was not limited to regulating trade itself.
116. Barnett, supra note 12, at 115-16, 122-23, 125-26, 132-33, 141-42, 145.
117. See. e.g., Letter from James Madison to George Washington dated April 16, 1787, in 2 THE WRITINGS OF JAMES MADISON 344-45 (Gaillard Hunt ed., 1900-1910) (contending that the new national government should have "complete authority in . . . the regulation of trade, including the right of taxing both exports and imports, the fixing of the terms and forms of naturalization, " c.").
118. See Irving Brant, Mr. Crosskey and Mr. Madison, 54 COLUM. L. REV. 443, 444-45 (1954). Interestingly, Brant disputed almost all of Crosskey's other arguments.
119. See Barnett, supra note 12, at 114-25.
120. See supra note 17.
121. Gibbons, 22 U.S. at 194-95 (emphasis added); see Nelson & Pushaw, supra note 2, at 59-60 (summarizing Chief Justice Marshall's interpretation of "among the several States").
122. Gibbons, 22 U.S. at 195-97, 204.
123. Barnett, supra note 12, at 137 (citations omitted).
124. See id. at 132-34 (discussing THE FEDERALIST Nos. 11, 23, 42, 45); Nelson & Pushaw, supra note 2, at 24, 27, 31, 33, 35, 38, 44-50 (analyzing these and other Federalist Papers).
125. See Barnett, supra note 12, at 135 n.168 (agreeing with Nelson & Pushaw, supra note 2 at 42-49).
126. Professor Barnett endorses Richard Epstein's argument that almost all commercial transactions physically take place within one state, and that therefore the critical factor is not the location of an exchange but rather its connection to out-of-state commerce. See Barnett, supra note 12, at 137 n. 180 (relying on Epstein, supra note 11, at 1403). Barnett maintains that "Congress has power only to regulate activities that are part of a transaction between persons of different states . . . , not a transaction between persons of the same state." Barnett, supra note 12, at 137 n.180.
127. See Nelson & Pushaw, supra note 2, at 44-45 (summarizing the relevant Convention records); id. at 60 & n.250 (describing the opinion in Gibbons on this point).
128. Indeed, even when the Court adopted a restrictive definition of "commerce" in the late nineteenth and early twentieth centuries, it still allowed federal regulation of intrastate commercial activity (e.g., railroad companies that operated exclusively within one state) that affected other states. See Nelson & Pushaw, supra note 2, at 71 -72 (discussing the pertinent cases).
129. Barnett, supra note 12, at 136.
130. Nelson & Pushaw, supra note 2, at 9-10 n.37, 86-87, 122-23, 141-47.
131. Barnett, supra note 12, at 137-38.
132. See Nelson & Pushaw, supra note 2, at 51. For a detailed analysis of this argument, supported by voluminous primary sources, consult Robert J. Pushaw, Jr., The Inherent Powers of Federal Courts and the Structural Constitution, 86 IOWA L. REV. 735, 833-43 (2001).
133. See Barnett, supra note 12, at 139-46.
134. See id. at 145-46 (setting forth a letter written by Madison in 1829).
135. See supra notes 30-31 and accompanying text. Barnett anticipates this criticism. See Barnett, supra note 12, at 146 n.213.
136. Id. at 142.
137. Id.
138. For example, Professor Barnett asserts that "Article I, Section 4 gives Congress the power to 'alter such Regulations' on the time, place, and manner of elections prescribed by state legislatures. Clearly, the power to regulate or facilitate elections is not the power to prohibit them." Id. at 140. Yet election "regulations" have always included prohibiting certain people from voting - for instance, felons and the mentally incapacitated and, for years after the Constitution was adopted, blacks, women, and those without sufficient property.
139. See id. at 105-07.
140. See supra note 53 and accompanying text.
141. See supra notes 51-52 and accompanying text.
142. See United States v. Lopez, 514 U.S. 549, 601 n.8 (1995) (Thomas, J., concurring); see also Epstein, supra note 11, at 1387, 1455 (acknowledging the difficulties that would attend the embrace of his narrow construction of the Commerce Clause).
143. 22 U.S. (9 Wheat.) 1 (1824).
144. See supra notes 87-99, 117-118, 123 and accompanying text (discussing Gibbons).
145. By contrast, "[u]nder our proposed standard, all federal legislation governing commercial transportation would be upheld . . . because (1) providing transportation for a fee is 'commerce,' and (2) even intrastate transit often affects commerce among the states." Nelson & Pushaw, supra note 2, at 119.
146. NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).
147. United States v. Darby, 312 U.S. 100 (1941).
148. The Court held that, even if the workers were involved in "manufacturing" rather than "commerce" and even if they performed labor within one state, Congress could regulate them because it had a "rational basis" for concluding that their activities "substantially affected" interstate commerce. See Darby, 312 U.S. at 118-19; Jones & Laughlin, 301 U.S. at 37-43. We agree with the results, but not the reasoning, of these cases. The Court would have been on firmer ground (and simplified its analysis) by recognizing that "commerce" includes both manufacturing and the compensated provision of services. See Nelson & Pushaw, supra note 2, at 79-80, 124.
149. 317 U.S. 111 (1942).
150. We would permit Congress to reach such production to the extent it is intended for the market-place, not for personal or family consumption. See Nelson & Pushaw, supra note 2, at 81-83, 120-22.
151. See Hodel v. Indiana, 452 U.S. 314 (1981); Model v. Va. Surface Mining & Reclamation Ass'n, 452 U.S. 264 (1981). As mentioned earlier, Professor Barnett apparently wants to sustain at least some environmental laws, but it is unclear why they would not all be void under his theory that Congress cannot regulate production. See supra notes 125-126 and accompanying text.
152. 156 U.S. 1 (1895); see supra notes 82-84 and accompanying text for discussion.
153. See supra notes 83-86 and accompanying text (describing Barnett's approval of E.C. Knight, which was reversed - correctly, in our view - during the New Deal).
154. See, e.g., United States v. South-Eastern Underwriters Ass'n, 322 U.S. 533 (1944) (upholding the extension of antitrust laws to insurance companies); see Nelson & Pushaw, supra note 2, at 85, 120. Concededly, Barnett might allow Congress to reach banking under some other Article I power, such as borrowing money or raising revenue.
155. See Katzenbach v. McClung, 379 U.S. 294 (1964); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964). We would reach the same result as the Court on the grounds that (1) the rental of a motel room or the sale of food and services for money qualify as "commerce," and barring discrimination in such commercial transactions ensures a free market; and (2) Congress could reasonably find that such discrimination, which inhibits travel and spending by both minorities and whites opposed to discrimination, has a significant impact on commerce in more than one state. See Nelson & Pushaw, supra note 2, at 86, 124-25.
156. Champion v. Ames, 188 U.S. 321 (1903). This precedent was later applied to regulations of other harmful items like misbranded food and drugs. See Nelson & Pushaw, supra note 2, at 74-79, 126-31 (contending that Congress can prohibit interstate commercial activity that has moral overtones (such as the delivery and sale of lottery tickets), but not noncommercial conduct like transporting women across state lines to engage in "immoral" conduct not involving prostitution).
157. See supra notes 20, 49-55, 129-137 and accompanying text.
158. See Nelson & Pushaw, supra note 2, at 6, 101-02 (arguing that the Thomas/Epstein thesis unrealistically suggests that the Court should reverse course and strike down almost every law enacted pursuant to the Commerce power). "Given the Court's concerns for stare decisis and the great reliance interests involved, the most useful approach would salvage as much Commerce Clause precedent as possible." Id. at 102 n.480. Indeed, our Neo-Federalist methodology has the practical advantage of harmonizing Federalist principles with the intervening two centuries of legal and political developments. See supra notes 21-29 and accompanying text.
159. 29 U.S.C. §§ 651-78 (1994).
160. 29 U.S.C. §§ 631-34.
161. 29 U.S.C. §§ 2601-654.
162. 42 U.S.C. §§ 12101-213 (1994).
163. Examples include the Clean Air Act, the Clean Water Act, the Comprehensive Environmental Response Compensation, and Liability Act, and the Endangered Species Act. See Nelson & Pushaw, supra note 2 at 141-47 (summarizing and analyzing these statutes in light of our Commerce Clause test, which would salvage all of their provisions except for those few that reach wholly noncommercial activity) Professor Barnett's approach would also cast doubt on the Trademark Act of 1946 (the Lanham Act), 15 U.S.C. §§ 1051-127 (1994), which governs the registration of trademarks used, or intended to be used, in commerce.
164. We recognize that Congress may be able to regulate HMOs and other medical subjects (e.g., Medicare), as well as many other policy matters, under its Spending power. See Nelson & Pushaw, supra note 2, at 161-62. Here we limit our discussion to the Commerce Clause, as Barnett did.
165. Barnett, supra note 12, at 111.
166. See id. at 108-10 (distinguishing historical "interpretation" from later judicial "construction"). Furthermore, Barnett hints that he might offset his cramped reading of the Commerce Clause with a more generous interpretation of other constitutional provisions, such as the Necessary and Proper Clause. See id. at 118-19, 127-28, 138-39, 147.
167. Id. at 147.
168. Id. at 106.
169. Akhil Reed Amar, The Supreme Court. 1999 Term-Foreword: The Document and the Doctrine, 114 HARV. L. REV. 26, 28 (2000). This problem is hardly new. For example, in 1791 Representative James Madison, who was surely qualified to express the views of the Framers and Ratifiers, strenuously argued that no power enumerated in Article I (e.g., to tax and spend for the general welfare, borrow money, regulate commerce, or enact "necessary and proper" laws) either explicitly or implicitly authorized Congress to establish a national bank. See Nelson & Pushaw, supra note 2, at 51-53 (summarizing Madison's argument). As President in 1816, however, Madison signed the statute renewing the bank on the ground that "legislative precedent" had settled this constitutional issue, even though he thought that this interpretation was wrong. See id. at 55 n.229. Thus, even leading Founders apparently did not always think that original meaning should control forever.