Government

Can Obama Use the Commerce Clause to Implement his Agenda?

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There are two ways by which the Commerce Clause is interpreted: broad application and narrow. These application types are used based on the definition of commerce believed to be attached to Congress’s power to “regulate commerce,” (Art. 1, Sec 8.3). Those who believe that commerce should be defined as any “gainful activity” (Barnett, 2001, p. 4) tend to apply the broad application to the interpretation of the Commerce Clause. On the other hand, those who believe that commerce is defined as merely the transfer of goods and services gravitate toward the narrow application of this clause. Below is a brief argument as to why the broad interpretation of the Commerce Clause should not be used.

The primary reason why the broad interpretation of the commerce clause should not be used is because it falls outside the boundaries of the original intent of the Founders. Their intent was obviously to institute a limited government, and the notion that any “gainful activity” should have the opportunity of being regulated goes far beyond any reasonable definition of the word “limited.” Gainful activity could be applied to virtually anything—from production, to agriculture, to your child’s lemonade stand, all of which could affect interstate commerce in one way or another. If the broad interpretation of the commerce clause is to be used on such a widespread and regular basis, the U.S. should cease to refer to itself as a limited government.

In contrast, the narrow interpretation of the commerce clause reflects both the meaning of the language used at the time of the creation of the Constitution as well as the original intent of the Framers. Limited government is more appropriately reflected when the definition of commerce is also limited to the transfer of goods and services. Also referred to as “intercourse,” this definition specifies the type of interstate economic activity that Congress is allowed to regulate, rather than leaving the interpretation open to any interstate economic activity as is the case with the broad interpretation. For these reasons, I believe that the narrow interpretation is more in keeping with the original intent of the Framers when they created the Constitution.

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Why the Constitution is NOT a Living Document

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One of the more popular contemporary interpretations of the Constitution is the notion that it is a living document, or that its meaning changes over time. Indeed, it is easy to think that a document that is more than 200 years old might by now become at least a little outdated, or even irrelevant. However, my contention is that the values and principles embodied in the Constitution are just as relevant today as they were when the founders first created it. With this in mind, the Constitution should be interpreted not as a living document, but as close to the original intent that the Founders had in mind.

The most important reason why the Constitution should not be interpreted as a living document is that it opens the door for all other kinds of ideas to be read into its meaning. This is a major flaw with those who adhere to a nonoriginal approach to interpreting the Constitution; of all of the approaches it is the, “most vulnerable to the charge of illegitimacy,” (May, Ides, 2013, p. 39). Who is to say what parts of the Constitution are outdated and which parts are not? Without a baseline of original meaning, the consistency of rulings is put in danger—one judge may read new meaning into a phrase in the Constitution for one reason, another may read something completely different into that same phrase for other reasons. An original intent approach seeks to preserve the ideals that the Constitution was designed to uphold, rather than risk its perversion with a living document approach.

One of the problems that our textbook claims is associated with an originalist approach to the Constitution is that it causes the document to be unable to address the new and contemporary issues that did not exist at the time of its creation. This argument cites the different types of speech—radio, T.V., Internet—that did not exist in the 1700s that under a strict and specific version of originalism could be rendered unprotected under the 1st Amendment (May, Ides, 2013, p. 38). This approach, however, is actually a form of textualism rather than originalism, taking only the strict meaning of the words of the Constitution—which actually could rule out even some forms of speech available in the 1700s—and disregarding the principle of free speech that the Founders originally intended to uphold.

References

May, C. N. Idea, A. (2013) Constitutional Law: National Power and Federalism. New York: Wolters Kluwer Law & Business.