(To learn more about this topic, listen to Justin Longo’s interview with Rob Natelson — “Constitutionally, what does the word “commerce” mean?“)
ObamaCare has set off a national debate on whether the measure is constitutional under Congress’s “Interstate Commerce Power.” The Constitution granted Congress the Interstate Commerce Power in two clauses. The first clause gave Congress authority to “regulate Commerce . . . among the several states.” This meant that Congress could govern trade by merchants dealing across state lines and oversee a few traditionally-connected activities, such as navigation and promissory notes.
The second clause in the Commerce Power granted Congress authority to “make all Laws which shall be necessary and proper for carrying into Execution” the first clause. It clarified that Congress could control some activities that were not technically commerce, if that control was “incidental” to regulating commerce. For example, Congress could rent office space to house customs officials. The Founders explained that this “necessary and proper” clause did not grant any power; it merely explained that the power to “regulate Commerce . . . among the several states” should be read according to its reasonable intent, rather than very narrowly.
However, under the pressures of the Great Depression and World War II, the Supreme Court started to interpret the Commerce Power to allow Congress to regulate virtually all economic activities.
You would think that most legal scholars would object to such a gross misinterpretation. After all, scholars are supposed approach evidence in a reasonably objective manner. Unfortunately, many law professors do not even pretend to be objective about such issues – they are dedicated to the Leviathan State, and they have spent huge amounts of time and resources struggling to show that the Constitution authorizes Leviathan. Some of these efforts are so strained as to be comical. But in the real world any theory pleasing to big-government politicians is likely to be taken seriously.
The latest attempt to show that the Constitution authorizes Leviathan is a paper by Jack Balkin, a highly talented Yale law professor who usually employs his gifts in more useful ways. Balkin’s argument is that the original meaning of “Commerce” in the Constitution included not just mercantile trade, but an almost unlimited range of other interactions. As so often happens, a leading law journal published his paper, even though the author began the article by openly admitting his bias, and even though the paper overlooked or mischaracterized previous historical findings.