Two of my favorite libertarian bloggers have squared off over the meaning of the Commerce Clause. In this corner, from the Cato Institute, Radley Balko:
Nearly every libertarian interpretation of the Constitution I’ve read says that the intent of the Commerce Clause was to facilitate commerce between the states, not to inhibit it. It was meant to set up a kind of “free trade zone” between the states. So if Mississippi, for example, wanted to tax every boat carrying cotton not grown in Mississippi traveling down the Mississippi River, Congress would have the authority to intervene. I’ve never read a libertarian interpretation of the Commerce Clause that says it should be interpreted to mean that Congress can tell businesses how they can or can’t solicit customers.
In fact, most libertarians agree that the only Supreme Court case to correctly interpret the Commerce Clause was the very first to come across its desk — Gibbons v. Ogden in 1824. There the Court struck down a New York law attempting to establish a monopoly on steamships traveling between New York and New Jersey. Chief Justice Marshall recognized that the Commerce Clause applies only to the trafficking of goods between two or more states, and also that Congresss had no power to regulate commerce within a state (he refused to allow Congress to enforce quarantine laws before or after a steamship docked within a particular state, for example).
And in this corner, late of Cato, now with Reason magazine, Julian “the Apostate” Sanchez:
Well, you know, I don’t much care about the “libertarian” or “non-libertarian” interpretation; I’m more curious about the correct interpretation. And if the “libertarian” interpretation insists that, contrary to appearances, the Commerce Clause does not empower the federal government to “regulate Commerce… among the several States,” then the “libertarian interpretation” is wrong.
Oh, I fully agree that the abuses Radley goes on to cite, wherein “commerce” is read to mean “manufacturing” or “anything that might affect commerce” or “anything Congress feels like passing a law about” are ultra vires. But that’s not what we’re talking about here, is it? This isn’t someone growing wheat on his own farm, or insisting on a 50 hour work week in a local factory. We’re talking about folks in one state calling up folks in another state to carry out a business transaction. If that’s not “commerce… among the several States” I don’t know what is.
The ostensible bone of contention here is “don’t-call list” anti-telemarketing laws, which Radley opposes and Julian doesn’t object to very vociferously, but the more important issue, as they both recognize, is the scope of the Commerce Clause. What we really have on display, however, is two conflicting theories of Constitutional interpretation.
Radley, as he acknowledges offhandedly, subscribes to original intent, appealing to “the intent” of the Commerce Clause to faciliate rather than inhibit commerce between the states. Julian is a textualist: he argues that the power “to regulate commerce among the several States” is, well, exactly that.
Now much as I would like to read the Constitution as debarring all Federal economic regulation whatsoever, I’m afraid Radley’s dog won’t hunt. Laws and constitutions are written by committees, and ascribing intent to groups is a dubious process indeed. If Jefferson, Madison and Hamilton quarreled over the meaning of a particular clause, as they often did, whose “intent” carries the day?
Original intent theory, if we assume that “intent” can be established at all, perversely privileges thought over deed. We are supposed to concern ourselves not with what the Constitution actually says, but with what the Founders thought it said. Even as a principle of literary interpretation, where we usually have only one author to concern ourselves with, this is unsustainable.
I of course agree with Radley and Julian that the Commerce Clause is a painfully slender reed to suspend a full-featured welfare state from, or, as Julian puts it, “that commerce means, as it’s been read to mean, ‘anything that seems like it might possibly marginally affect commerce if you squint real hard.’” Radley complains that “How can you say, then, that Congress doesn’t have the Constitutional authority to regulate the airlines, broadcast media, or any business, really, that has franchises in more than one state, or that does business with other businesses in more than one state, or that does anything at all that even remotely affects commerce in more than one state?” The answer is two-fold. First, there is a principled difference between regulating interstate commerce and regulating anything that might conceivably affect interstate commerce. The Supreme Court eventually agreed in Lopez that there are some interventions that even the Commerce Clause cannot justify, like federal laws against guns near school grounds. Second, some laws have to be fought on substantive rather than Constitutional grounds. As Eve Tushnet likes to say, Repeat after me: Not all bad laws are unconstitutional… not all bad laws are unconstitutional…
(Update: Jonathan Wilde comments.)