Author: Timothy Sandefur
Our fellow citizens at the New York Times have an editorial today about Elena Kagan’s nomination to the Supreme Court, in which they demonstrate the real shallowness of their constitutional understanding. Some Republicans in the Senate, the Times observes, “are ready to vote against her, and many are citing her interpretation of the commerce clause of the Constitution, the one that says Congress has the power to regulate commerce among the states.” Although the Times acknowledges that this clause has been “broadly interpreted,” it nowhere acknowledges the dangers imposed by such a broad interpretation—dangers that even the liberal justices on the U.S. Supreme Court have acknowledged. These dangers include nothing less than the total inversion of the Constitution’s design, giving federal officials power over every activity in the United States—even though the Constitution was designed to limit federal power.
Again, this can’t be emphasized enough: liberals have every bit as much reason as conservatives to worry about the expansive interpretation of the commerce clause. For example, it was by exploiting that interpretation that conservatives adopted nationwide restrictions on certain types of abortion that liberals believe should be protected from government interference. The Constitution is intended to shield us from the government, and if we lower that shield because “our guy” is in the White House, you’ll be left without protection when “their guy” gets the White House the next time around. As James Madison said in The Federalist, “Enlightened statesmen will not always be at the helm. Nor, in many cases, can [the public interest be pursued] without taking into view indirect and remote considerations which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole.”
All of this is too much, however, for the New York Times. To them, anything they believe is a good idea is automatically constitutional. Without any mention of the dangers of an overly-expansive reading of the commerce clause, the Times notes how much the federal government has used this power: “The clause was the legal basis for any number of statutes of enormous benefit to society. It is why we have the Clean Air Act. The Clean Water Act. The Endangered Species Act. The Fair Labor Standards Act…. The Civil Rights Act of 1964….” Now, there are good reasons for arguing that some of these laws weren’t good ideas, but that’s beside the point. The point here is constitutionality, not policy—and on that point, the Times is silent. To them, serious questions about the federal government’s constitutional limits are “ideological fuss,” and an “excuse.” So much for James Madison! “A vote against the commerce clause,” the Times concludes, “is a vote against some of the best things that government has done for the better part of a century….”
This is ridiculous even for the New York Times. For one thing, no Senator has any power to “vote against the commerce clause.” But we all have a profound interest in enforcing the Constitution’s limits on federal power—including the restrictions on Congress’ commerce clause authority. To disregard those limits is to invite government abuses against which we will have no protection. The Times should be ashamed—had it not long ago proved itself shameless.
Update: Gary Rosen writes in his outstanding book American Compact, "As Madison feared, utility rather than constitutionality has become the ultimate test for public policy. As a result, one seldom hears it said anymore that the federal government simply lacks a constitutional warrant for a given program or regulation. The argument would be seen as little more than a diversionary tactic…."