Back to the Commerce Clause

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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12 Responses

  1. AF says:

    “And Comstock would be wrong for the same reason that Morrison is wrong.”

    Of course, because there’s no constitutional right not to be incarcerated without being convicted of a crime.

  2. Gerard Magliocca says:

    Well, civil commitment has been upheld a number of times. I think the horse has left that barn already.

  3. AF says:

    True, but there’s no constitutional right to possess a gun in a school zone either.

  4. Alan says:

    “As I explained in an article a few years ago in Georgetown, courts should defer to congressional judgments about its authority unless the regulated activity arguably restricts the exercise of a personal enumerated or unenumerated right. The purpose of enumerated powers, after all, was to protect individual freedom.”

    Justice Scalia once wrote a dissenting opinion in which he accused the majority of abstracting from a constitutional right to the reasons for having that right… and then eliminating the right. That’s pretty much what you’ve done here, only instead of “right” I should say “constitutional provision.”

    I fully agree that the reason for establishing a government of enumerated powers was to preserve individual freedom. But when a straightforward application of constitutional text doesn’t really serve that objective, that is no excuse for ignoring the constitutional text on the grounds that the text is broader than necessary to justify its larger purpose. It trivializes the Commerce Clause to say that it empowers Congress to create a civil cause of action for a certain class of crime victims (Morrison), or to regulate other noncommercial activity that has ripple effects on the economy (not even interstate commerce specifically, but the economy itself, which NOTHING in the Constitution authorizes Congress to regulate).

    The Commerce Clause authorizes Congress to regulate three kinds of commerce: commerce with other countries, commerce among the states, and commerce with Indian tribes. If Congress passes a law that regulates noncommercial activity, that exceeds Congress’s power under the Commerce Clause whether or not it has the added vice of stepping on the Bill of Rights.

    A violation of an individual right is not a condition precedent to a violation of the constitutional integrity of the structure of our government, and no court has the right to hold those two violations to different standards. Every still-effective part of the Constitution is the supreme law of the land. No provision is more supreme than another; that’s the whole point of their all being SUPREME.

    “BTW, in anticipation of the objection that, ‘Fine, but what you’re saying has nothing to do with commerce,’ I would answer, ‘Do you really think that the case law has anything to do with commerce now?'”

    What is this, the two-wrongs-make-a-right defense? Or is this the defense that if a hospital won’t give you a perfectly sterile operating room then you should just do the surgery in a sewer? You’re criticizing the case law for a flaw that looms much larger in your own argument. Given the Morrison decision, the Court has been more mindful than you of the principle that the power to regulate interstate commerce has to have some meaningful connection to commerce. It hasn’t been anywhere near as mindful of that principle as it should be, but it’s more so than you.

    You’re criticizing the case law as insufficiently deferential to Congress. You seem to be arguing that the Court has gotten the Constitution wrong by being too willing to strike down what it’s done. And you base this argument on an individual-rights theory of constitutional interpretation that is even less mindful of the Constitution’s language than is the case law. Nothing in the Constitution says that Congress may go beyond the bounds of any particular grant of power when no individual freedom is at stake. The Constitution empowers Congress to do some things; it does not empower Congress to do others.

    Allowing Congress to regulate noncommercial activity merely because it has ripple effects on the economy (not even interstate commerce specifically, but the entire economy) is basically a way of saying that the constitutional language doesn’t matter; all that matters is the broader purpose.

    But why stop at making the broader purpose the protection of individual freedom? You might just as well say that the REAL purpose of the Constitution is to establish a more just–a more perfect–Union (which is just as correct as saying that the purpose of the enumerated-powers doctrine is to protect individual freedom), and therefore any act of Congress that tends to the betterment of the Union is constitutional, because any constitutional language that would inhibit Congress from doing good must be subordinated to the intention that brought that language into being–the intention to do justice. You can’t avoid slipping down that slope; it’s the same logic you use, only with a wider view than you articulated.

  5. Tim Lee says:

    I agree with Alan. This analysis seems incoherent and unprincipled. First, if the point of the enumerated powers was to protect enumerated rights, then why did the Founders bother to list them at all? Policies that infringe enumerated rights are independently unconstitutional. It’s a basic principle of constitutional interpretation that you shouldn’t interpret clauses in ways that render them nullities.

    Second, if the purpose of the enumerated powers was to protect individual freedom, I don’t see how you can argue with a straight face that government’s power of involuntary commitment doesn’t impact individual freedom. Obviously it’s true that involuntary commitment is constitutional under some circumstances, but again if *that’s* your standard, then you’re just reading the enumerated powers out of the Constitution entirely.

    The Founders gave the federal government enumerated powers because it believed a limited federal government would be good for individual freedom. I agree with you that the courts stopped interpreting it that way decades ago, but that doesn’t mean they’re correct.

  6. Joe says:

    I don’t read the Commerce Clause as strictly as Alan, but he gets to the heart of my concerns with post.

    Art. I sets forth enumerated powers. “The purpose of enumerated powers, after all, was to protect individual freedom.” The article seems to think this only comes when some sort of specific individual right is at issue. But, the principle at stake is also furthered by structural restraints. Federalism protects individual rights too.

    Morrison was perhaps wrong because the 14A set forth a new regime in this regard, allowing Congress additional power to protect equality and so forth via its @5 powers. Circa 1870, a few judges understood that state inaction (particularly selective inaction) could inhibit rights and that federal law could secure them in such a case. Applying the rule to a state institution in Morrison was particularly dubious. But, that’s an aside.

    Anyway, the matter at hand clearly involves some sort of individual right — freedom of arbitrary restraint. So, the power should be carefully limited. OTOH, the litigant might have little to hope on that point given current law.

  7. Alan says:

    “So I think that the commentators are right that I was too hasty in dismissing the idea that civil commitment raises individual rights concerns that would be sufficient to trigger heightened scrutiny of the federal provision at issue in Crawford. I’ll have to look at the case law on that issue more closely.”

    1. Crawford or Comstock?

    2. Why would it matter for your analysis what the case law says, given that your framework is not consistent with the controlling case law?

  8. Gerard Magliocca says:

    Sorry — fixed the post to say Comstock.

    Well, I explained in the post that I think Comstock was decided correctly under the controlling case law. You can take my counterfactual for what it’s worth — I was just trying to summarize what I said in the article and how the recent cases might come out differently if my analysis there was applied.

  9. Gerard Magliocca says:


    Maybe you meant “How would the case law on civil commitment affect how I think about Comstock?” Well, it might not, but given the force of the objections raised to my conclusion I should probably go back and research this further. I assumed that the Court’s cases are pretty clear that the practice is lawful with respect to “sexually dangerous” persons, but maybe I’m just wrong about that.

  10. Alan says:

    I guess that, since you already knew what Comstock was about, I just can’t understand why reading more cases would affect your position as to whether Comstock involves the sort of personal-liberty issue that would bring into play this double standard for the Commerce Clause. I’d think that one wouldn’t really need to read any cases to determine what side of the line Comstock falls on. As you said in your initial post, Comstock is about civil commitment.

  11. Alan says:

    Oh, and I wrote my last comment (#10) before I saw your last one (#9).

  12. Gerard Magliocca says:

    That’s OK Alan. It’s all part of the interactive blogging experience!