Private: In Clarence Thomas' America, The New Deal Is In Jeopardy

column by Colleen Berry, Editor-at-Large
Article I, Section 8 of the Constitution grants Congress the authority to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Over the past two centuries, the Supreme Court has attempted to craft a workable definition of the so-called "Commerce Clause" by defining and modifying the meaning of the text in accordance with the economic policies of the era.
In 1824, Chief Justice John Marshall articulated a standard for determining the scope of federal commerce power in Gibbons v. Ogden. Delivering the opinion of the Supreme Court, Marshall wrote, "The power to regulate commerce extends to every species of commercial intercourse between the United States and foreign nations, and among the several States. It does not stop at the external boundary of a State. But it does not extend to a commerce which is completely internal." Thus, the only explicit exemption from Congress' power under the commerce clause as interpreted by Marshall is commerce that is entirely intrastate, and has no effect on another state. Marshall's determination of Congress' power to regulate commerce served as the basis upon which subsequent Supreme Court benches evaluated federal legislation under the commerce clause.

In the century following Gibbons v. Ogden, the Court restricted its interpretation of Congressional authority to regulate commerce in favor of a laissez-faire economy. During this period, the Court struck down as unconstitutional virtually every regulatory piece of federal legislation. The turning point in this jurisprudence culminated with the New Deal legislation, the purpose of which was to reverse the crippling economic downturn of the Great Depression. After a century of rejecting Congressional legislation, the Supreme Court in 1937 did a dramatic about-face in Nat'l Labor Relations Bd. v. Jones & Laughlin Steel Corp.
At issue before the Court was the National Labor Relations Act, which implemented national standards for fair labor practices. Instead of striking down the Congressional regulation, as it had done so consistently in the past century, the Court held that unrest among intrastate labor unions did indeed affect interstate commerce, and Congress thus acted within its authority by implementing the National Labor Relations Act. This new era of jurisprudence afforded Congress great deference from the Supreme Court. The Court's definition of interstate commerce was even held to include the agriculture of wheat that a farmer had produced for his own personal consumption in Wickard v. Filburn. Without a broad Commerce Power, both the comprehensive regulation, and the broad labor protections which were the heart of the New Deal, are unlikely to remain good law. Furthermore, a guiding principle behind such a broad interpretation of the Constitution is the notion that Congress consists of elected officials who act on behalf of their constituents. Thus, who better to protect the individual rights of U.S. citizens than Congress?
This broad interpretation of Congress' power to regulate commerce lasted until 1995, when the Supreme Court decided United States v. Lopez . In 1990, Congress enacted the Gun-Free School Zones Act, which prohibited the possession of a gun within 1,000 feet of a school. The law's constitutionality was challenged, and for the first time since 1926, the Supreme Court held that Congress did not have the authority under the commerce clause to enact such legislation. Without overturning any precedent, the majority held that the act was a criminal statute, and did not relate to any form of commerce that could be recognized within the scope of the commerce clause.
Concurring with the judgment of US v. Lopez, Justice Clarence Thomas wrote separately and independently to voice his opposition to the reasoning of the majority as well as the dissenters. Thomas wrote, "Although I join the majority, I write separately to observe that our case law has drifted far from the original understanding of the Commerce Clause." The majority refined the meaning of interstate commerce from that which "affects commerce" to that which "substantially affects commerce." The dissenters argue that this modification is an unreasonable restriction on Congress' authority. Thomas asserts that the "substantially affects commerce" test does not go far enough to restrict Congress' authority.
Thomas' opinion begins with a discussion of what "commerce" meant at the time the Constitution was ratified. He acknowledges that this antiquated definition does not square with a modern-day understanding of commerce, but he argues that "interjecting a modern sense into the Constitution generates significant textual and structural problems." Namely, he points to specific passages of the Constitution and argues that if the framers had not intended for the Commerce Clause to be read narrowly, then they would had crafted the text to say as much. For example, "if Congress could regulate matters that substantially affect interstate commerce, there would have been no need to specify that Congress can regulate international trade and commerce with the Indians."
Thomas traces his discontent with the current interpretation of the Commerce Clause all the way back to Gibbons v. Ogden. He claims that Marshall's restrictions on Congress' regulatory power were appropriate, but subsequently misapplied, thus resulting in an entirely flawed body of law. He particularly chastises "the Court's dramatic departure in the 1930's from a century and a half of precedent." Ironically, Thomas condemns precisely what he advocates. He recommends the disposal of 60 years of precedent, simply because his most recent predecessors interpreted the commerce clause more broadly than he would prefer.
Thomas accuses the Court and its predecessors of adhering to an inappropriate interpretation of the commerce clause. He advocates a severe overhaul of the Court's jurisprudence, so as to significantly restrict Congress' authority under the commerce clause. In calling for such an originalist reading of the Constitution, Thomas would have the Court abolish the past 60 years of precedent, as well as the jurisprudence of his colleagues on the bench. Consequently, the scope of Congress' regulatory power under the Commerce Clause would exclude agriculture, manufacturing, employee-employer relations, and any commercial activity performed entirely within the boundaries of a state, regardless of that activity's effect on interstate commerce.