Activist Judges Strike Again

Attorney General J.B. Van Hollen

Wisconsin Attorney General J.B. Van Hollen

Historically, conservative, nationalistic judges have carved out a tradition of broad construction of the commerce clause. Those who would retreat from or reject that tradition must abandon any pretense to their “conservatism.” The commerce clause is intimately linked with the organization of political forces driving for a new constitution, and the framers accordingly recognized the chaotic interruptions of commerce by states eager to protect their own products and provide further means for raising revenue.

Marshall’s landmark ruling in Ogden v. Saunders in 1824 offered the first extended discussion of the commerce clause since its inception. The chief justice predictably framed the scope of the commerce clause and congressional power in his typically latitudinarian fashion. “Commerce,” he said, “undoubtedly, is traffic,” but he added: “it is something more; it is intercourse.” Strict construction, he insisted, “would cripple the government, and render it unequal to the objects for which it is declared to be instituted.” And surely today’s self-proclaimed conservatives must love Marshall’s deference to Congress, whose power is “plenary,” limited only by legislative “wisdom and discretion.” Marshall, ever anxious to steer the court away from political questions, effectively denied a judicial role in restraining Congress.

A later Supreme Court attempted to limit congressional power and establish another direction in the Knight case in 1895 when it ruled manufacturing was not commerce and the federal government lacked authority to regulate the great emerging monopolies of the time. The court held that the sugar refining industry—94 percent controlled by one conglomerate—was engaged in manufacturing, not commerce, and thus free from antitrust regulation.

The decision proved exceptional and limited. But the conservative majority of the court in the 1930s, overtly hostile to and contemptuous of the New Deal, vigorously revived it, thwarting early attempts to bring economic order and reform. Yet the post-Knight history of Supreme Court commerce decisions marked a steady limitation, if not retreat, from the arbitrary distinction between manufacturing and commerce.

William Howard Taft, an eminent conservative yet one who endorsed most of the progressive goals of his time (pay attention, Glenn Beck!), had an unhappy presidency, but ended his career just where he always wanted to be: chief justice of the United States (1921-30). As a lower court judge, Taft found the Knight precedent perplexing and he neatly skirted it. Then and later, Taft’s rulings on commerce consistently advanced a broad construction of national power. At one point, he wrote that the commerce clause “is exactly what it would be in a government without states, and …  include[s] all that a legislature … could do in regulating commerce” except to take property without due process of law. Taft had one quirky exception to his expansive views on commerce, with his rejection of federal attempts to regulate child labor.

Taft’s commerce clause opinions became the foundation for the court’s rulings in the 1930s upholding broad federal power over commerce to bring order in the economic system. Endorsing the government’s program of labor relations, for example, the court embraced the views of Taft and rejected the artificial production/commerce distinction. In his opinions, Taft’s successor, Chief Justice Charles Evans Hughes, returned the court to its longstanding tradition, and he shrewdly embraced the opinions of his impeccable, conservative, constitutionalist predecessor.

What will the Supreme Court decide on the new health care law? First, Justice Clarence Thomas’ position should offer no mystery. Some quarters have demanded he recuse himself given his wife’s outspoken challenge to the health law. Virginia Thomas has been forthright: “I want to repeal Obamacare.” Never mind—her influence is beside the point, for Thomas has consistently supported a narrow construction of the commerce clause and limitation on federal power, approvingly citing the decisions of the “Four Horsemen,” as the rejectionist, conservative judges of the 1930s were called. Thomas sometimes seems more comfortable with the Articles of Confederation, the failed authorization for a national government that had preceded the adoption of the Constitution in 1787. If conservatives are said to look backward, then Thomas clearly owns the longest view.

stanley kutlerPredictions and hopes for the rest of the court’s stand on the health legislation abound. The justices decide law, not their own personal, political preferences—as conservative commentators so correctly remind us. They are not members of Congress, pursuing partisan, ideological goals; rather, they are members of the nation’s highest court, one deeply steeped in respect for a Constitution encased in precedent and history—a district judge in Florida and a partisan, puny attorney general in Wisconsin notwithstanding.

Stanley Kutler

Stanley Kutler is the author of “The Wars of Watergate” and other writings.

Republished with the author’s permission from TruthDig.

Published by the LA Progressive on February 17, 2011
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