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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Wednesday, February 17, 2010

"Commerce" by Jack Balkin

First, this analysis by an expert on criminal law issues is right to challenge a NYT op-ed for giving somewhat too much responsibility to the U.S. Supreme Court for "three strikes" types laws. The op-ed praised Justice Kennedy for being critical of the size of our prison population, but noted he was one of five justices to uphold such a law in California. The response notes the courts do have a role, but most of the blame lies on legislatures. It also notes moves to deal with prison crowding by the lower courts, moves the Supreme Court left in place.

[After finishing this post, I saw this interesting analysis of how the chief judge of the NY Court of Appeals changed things over there.]

The role of the federal courts also is touched by a new article by Jack Balkin on his analysis of the original understanding of the Commerce Clause. (This fits in -- touched upon here as well -- his various attempts to show how health care mandates are constitutional in part under said clause.) As he did before, such discussions provide a sort of liberal constitutional gloss on original understanding, attempting to attract a wider audience to both (with somewhat limited results, I'd gather). A taste:
To have commerce with someone meant to converse with them, meet with them, or interact with them. Thus, commerce naturally included all trade and economic activity because economic activity was social activity. But the idea of commerce-as-intercourse was broader than economics narrowly conceived—it also included networks of transportation and communication through which people traveled to interact with each other and corresponded with each other.

The best evidence of this is the "Indian Commerce Clause," the subset of the clause that is in large part the only explicit grant of authority over Native Americans apart from treaties. This clause was used for a broad range of national legislation that goes beyond simple economic measures. It is an interesting read that does have a core problem in my eyes -- not much of a real limiting principle. Balkin claims to have one: "where Congress cannot reasonably claim to be solving a federal problem." For instance, he cites this from the Constitutional Convention to help provide an interpretative gloss:
Gunning Bedford of Delaware then moved to further clarify the basic principles in Resolution VI: “That the national Legislature ought to possess the legislative rights vested in Congress by the confederation;” “and moreover to legislate in all cases for the general interests of the Union, and also in those to which the States are separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation.” The Bedford amendment passed 6 to 4, and the amended Resolution VI was adopted by a vote of 8 to 2.

The principle would then apply to "commerce" as spelled out in the clause. The clause expanded in scope as times changed since there is just so much more that reasonably can be understood to be a "federal problem," particularly of a "commercial" nature than there once were. My problem is that if you are going to provide a reasonable (if open to debate) broad understanding, one that goes beyond current Supreme Court doctrine (thus, the result of Lopez -- the gun-free school zone case was deemed reasonable, but not the breadth of its reasoning), you need to show how it is not totally open-ended.

Lopez itself was 5-4 (so open to debate) and left open other means to in effect do the same thing. Perhaps, I missed something, but this is the only real discussion the article provides on the "limits" of its analysis. It rejects the ruling's suggestion that traditionally state functions like education should be more carefully interpreted by the courts, since federal power over them remains when a federal problem covered by the Constitution exists. Likewise, the medicinal marijuana case is cited to show the breadth of the power, but not to address a concern of some when it sweeps in some rather intimate conduct. Federal abortion legislation ("partial birth" abortion ban) also might be covered here.

The net result is one reasonably can determine Prof. Balkin in effect trusts the political process as the only real limit here. This is not too surprising since it is really the basic honest reading of the Lopez dissenters' viewpoint. It also seems problematic. Balkin announced the new article on his blog, but (unlike some there) doesn't allow comments because of past sniping on his comment threads. As noted here, this leads a few at least to not want to read such posts. I at times read his stuff given the respect I have for his analysis, but skip over him other times because it is a bad policy -- one value of blogs is feedback.

Same basic concern here: he does not seem to fully respect the concern of some who would consider his analysis too open-ended, particularly given the spirit of the 10th Amendment and the scope of the power in the current age. If his analysis really has no limits for the courts to provide in most cases, his analysis of Lopez (he disputes Morrison, rightly, given its shallow rejection of an equal protection defense of the law) is not too reassuring on the front, he should bluntly say so. Nonetheless, the article is interesting and underlines how "original understanding" is not simply some conservative approach.

This should be remembered soon enough when the state gun rights case will be up for oral argument in early March.