De-Constitutionalizing Baseball (and Other Issues)
Yesterday I blogged about Stuart Banner’s new book on baseball’s antitrust exemption, focusing on the Supreme Court’s deference to reliance interests. But Banner’s story is also one of the Court affirming its prior holding while simultaneously removing an issue from its exclusive interpretive domain – “de-constitutionalizing” a question. When the Court does this, it maintains its prior outcome but changes its rationale to allow Congress to overturn its decision via legislation.
Here’s how it worked: Back in 1922, the Court held in Federal Baseball Club that Major League Baseball did not constitute interstate commerce, and therefore was not covered by the Sherman Antitrust Act. Three decades later the Court decided Toolson, affirming baseball’s immunity from the Sherman Act on statutory rather than constitutional grounds. The Court held that “Congress had no intention of including the business of baseball within the scope of the federal antitrust laws.”
In other words, the 1922 Court held that Congress had no power to regulate baseball, while the 1953 Court held that Congress had the power to do so but had not exercised it. The outcome remained unchanged: baseball was not covered by the Sherman Act. But before 1953, Congress could not regulate baseball; after 1953, Congress had not regulated baseball.
Instances of de-constitutionalization are not limited to the Green Fields of the Mind. The Court made the same move in the context of the Due Process and Dormant Commerce Clauses.
Almost 50 years ago, the Court held in National Bellas Hess that the Due Process clause prohibited states from imposing a duty to collect sales tax by out-of-state sellers. 25 years later the Supreme Court changed tack, declaring in Quill that a similar duty to collect was valid under the Due Process Clause, but invalid under the Dormant Commerce Clause. The Quill Court explicitly noted that “Congress is now free to decide whether, when, and to what extent the States may burden interstate mail-order concerns with a duty to collect use taxes.” In other words, states still could not impose such duties, but they could seek legislation granting them the power to do so.
De-constitutionalization is counter-counter-majoritarian (my apologies to anyone who just read this sentence). The Court removes an issue from its exclusive interpretive realm and places it back in the public sphere, while simultaneously preserving reliance interests by affirming the outcome of a prior case. Toolson and Quill provide two good examples. Any others?
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