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The Commerce Clause Confusion

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. Joe says:

    Since Roberts doesn’t appear to think it is “dicta,” one might be suspicious of this assurance. The fact that many didn’t think “inaction” was going on here too.

    But, we shall see.

  2. Brett Bellmore says:

    If you think the Constition “evolves”, doesn’t this to some extent shield you from accusations of dishonesty if you at one time accept a precedent for rhetorical purposes, and later reject it when you’ve got the votes to do so effectively? The Constitution may have simply “changed” in the meantime, and your vote simply tracked that change.

    IOW, wake me when Ginsburg accepts the legitimacy of Lopez or Morrison in a case where doing so alters the outcome of the case against her preferences, rather than merely serving to salve the conscience of a conservative justice voting with her against his own. Then I’ll believe she’s accepted those cases.

  3. Joe says:

    The use of “evolves” here in a snide fashion covers those constitutional provisions whose specific meaning changed over time, such as the fact that interracial marriage bans was once seen as perfectly fine under the 14A, but now it is seen as perfectly wrong.

    But, no, one needs not accept that mainstream view to argue that precedents you strongly disagree with would still not be infringed by such and such a law. This per her constitutional understandings. Not merely to “salve consciences.” You might think she’s wrong, but this doesn’t change a honest disagreement on principle.

    She probably shared Stevens belief that the law at issue in Raich was wrong as a matter of policy but upheld it as to the Constitution. So merely talking about “preferences” is a tad dishonest. In time, though it can take more than a decade, both liberals and conservatives in time accept precedents that they don’t like given the overall principle of stare decisis which takes time to be firm.

    For instance, Breyer applied precedent in Randall v. Sorrell to strike down a campaign finance law. I find it a bit hard to believe this was his “policy preference.” Scalia took the same approach with substantive due process.

    If the time is here for Lopez and Morrison when a case that would actually require overturning the law is a matter of supposition. This case was not that case for various principled reasons.

  4. Alfred says:

    I agree with you completely Gerard.

  5. Brett Bellmore says:

    The clauses whose specific meaning changed over time are the ones that got amended. Interracial marriage bans were actually being struck down under the 14th amendment by the lower courts (For instance, Burns v. State) until the Supreme court decided Pace v. Alabama.

    A decision which deserves about as much respect as Plessy v. Ferguson.

    The 14th amendment’s specific meaning didn’t change when the Court perpetrated Plessy, and then change back again with Loving.

  6. Joe says:

    Lower courts also upheld the interracial marriage bans. Pace v. Alabama reflected the common understanding at the time of the ratification. If some short lived minority viewpoint is all you need, you can pick and choose to fit your “originalist” position on most things.

    The clauses whose specific understanding changed in the sense meant here applies to the whole document. The First Amendment, e.g., originally commonly had a more restrictive understanding than today. Over time, its understanding “evolved,” the document giving us open-ended text that was left to history to define. Madison recognized this in his veto message for the bank. He originally thought it violated the Constitution, but accepted the verdict of history as expressed in popular, legislative and judicial precedent. The fact some thought otherwise in 1789 did not bind him.

    You are promoting some “ideal forms” view that seeks to find some pure meaning that was “out there” and simply not recognized by the majority at the time. This view is not accepted by a lot more than Ginsburg. Roberts, Alito, Kennedy and not even Scalia truly believes it.

  7. Joe says:

    BTW, Plessy v. Ferguson did not live up to the test of history, but it was not wrong that Massachusetts in the 1850s, pre-14A, but long after it held equality banned slavery and believing in the principle of equal protection, did not think “separate but equal” violated that term.

    If abolitionist Massachusetts thought this, the idea that the 14A ‘meant’ that separate but equal was unconstitutional in 1868 is hard to believe. The truth of the matter is simply this: society evolved as did its understanding of what true equality means. The 14A’s text protects “equal protection.”

    That never changed. But, what did change is our specific understanding. This is what “evolving” means here and it’s how the general public actually apply the document. Thus, even Alito is sarcastic about pure originalism at times.

  8. Shag from Brookline says:

    Joe, I think “If abolitionist Massachusetts thought this, … ” needs to be refined. It was the non-abolitionist Chief Justice Lemuel Shaw of the MA Supreme Judicial Court who thought this, as well as the constitutionality of the Fugitive Slave Act of 1850. The political battles of the 1850s are discussed in a NYTimes Book Review yesterday of “America’s Great Debate” by Fergus Bordewich. And in another review, the political battles of the Civil War and Reconstruction are discussed in “Fateful Lightning” by Allen Guelzo. Quite a bit of evolving took place following the Civil War Amendments, with extensive political battles that continue to this day, much of which has foundations in the remnants of slavery, the unnamed flaw in the original Constitution.

  9. Joe says:

    Shaw upheld actual practice, so it wasn’t just him.

  10. Shag from Brookline says:

    True, Joe, but MA had its share of anti-abolitionists, including Shaw. Of course an anti-abolitionist could at the same time be anti-slavery.

    Brett might take a look at the Legal History Blog on a new book “Loving v. Virginia in a Post-Racial World: Rethinking Race, Sex, and Marriage,” edited by Kevin Noble Maillard (Syracuse University) and Rose Cuison Villazor (Hofstra University), for a history of interracial marriages.

  11. Joe says:

    I think Souter said it fairly well in his Harvard speech: for the people of the late 19th Century, separate but equal was pretty far given where they came from.

    We moved on, but I would still give a bit more respect to those who accepted segregation, which was allowed in D.C. by the Reconstruction Congress. Using modern day mores in a different era is perilous.

    And, yes, Charles Sumner was a voice of many in suing against segregation in the 1850s, but he was still seen as “radical” for a reason — the moderate equality position at the time still accepted it.

  12. Shag from Brookline says:

    And for many in 1954, despite its unanimity, Brown v. Board of Education was radical, strongly challenged through the 1960s Civil Rights Acts and beyond. Today there might not be direct challenges of Brown, but surely the hatred on the part of many from day one of Obama’s inauguration is an indirect challenge as if a colorblind Constitution all of a sudden provides equality. The modern rise of originalism after all was fueled by Brown and other decisions of the Warren Court.

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