Prethinking the Commerce Clause (and Quantified Selves)

by John Holbo on April 14, 2016

For where desire, celestial, pure desire,
Hath taken root, and grows, and doth not tire,
There God a commerce states, and sheds
His secret on their heads.

Henry Vaughan, “The Star”

“And how does your commerce go, you strange guardian of the past?”

G.K. Chesterton, The Napoleon of Notting Hill

My partisanship post has blossomed into an extensive discussion of original intent, interpretation and the commerce clause. Maybe we could use a little more scholarship to go with that. (Who knows?)

Randy Barnett and Jack Balkin are big in this area, and their major papers are freely available on the web. (Here’s Balkin’s major statement, outside of his book. Here’s an old one by Barnett that makes his general framework clear. And here’s a recent response by him to Balkin on commerce.) But let me start with “Rethinking the Commerce Clause”, by Nelson and Pushaw. It’s not free online, but I want just to quote the opening:

Imagine that a commission charged with revising the Uniform Commercial Code proposed two new articles – one governing home-owners who raise vegetables for their families to eat, the other prohibiting sexual relations between consenting adults. The commissioners would probably be encouraged to seek professional help. The reason is obvious: Home gardening and consensual sex have nothing to do with “commercial” law, which concerns subjects such as the sale of goods and negotiable instruments.

Yet when Congress interprets its power to regulate “Commerce . . . among the several States” to include such things as food grown for family consumption and crossing state lines with a paramour for “immoral purposes,” no one suggests that our federal legislators have taken leave of their senses. On the contrary, judges and commentators generally find such exercises of the Commerce power quite plausible. In fact, from 1937 to 1994, the Supreme Court upheld every federal statute challenged under the Commerce Clause.

For tonight I just want to pose a trivia question. I’m thinking about the earliest case of a major author – a fiction author, it happens – seriously considering a legal hypothetical of the following form.

1) An agent of the state, proposing to act on behalf of the executive power, asserts that the state has a right to regulate interstate commerce (especially across navigable waters) and generally to maintain harmony among intermediate bodies/civic groups within the state. An expansive ‘necessary and proper’ clause is expounded to go with. That is, the state can do the necessary to achieve these legitimate state ends.

2) The state, in this case, is presently especially concerned to fix prices/values, to fight deflation.

3) A subject of the state wants to opt out of this state-regulated market. The strong negative freedom/privacy claim is made: I’m just going to be over here, by myself, not interfering with the state but doing my own non-commercial thing, thanks much.

4) The state objects on the grounds that non-participation will, itself, affect the market in an undesirable, i.e. deflationary way.

5) Pressing the claim of state power, the agent of the executive shifts to an expansive sense of ‘commerce’, well beyond the narrow commercial sense. It is asserted that it is very much the state’s prerogative to monitor – with an eye for regulation – ‘commerce’ of all sorts, e.g. with a paramour, especially across state lines. The agent in question might as well be channeling James C. Scott, in Seeing Like A State. It is the state’s business to render citizens transparent and legible. We get a nice expression of Scott’s metaphor: modern transmutation of Odysseus-style ‘metis’ – that is, practical know-how – into bureaucratic regimentation. Hands-on handicraft into theoretic statecraft.

6) Both sides are portrayed unsympathetically and it all ends in tears.

What work of literature am I thinking of? It’s quite old. If no one guesses, I’ll answer tomorrow night and, consider whether my case sheds any light on the Balkin/Barnett debate.



Brett Dunbar 04.14.16 at 5:35 pm

There are areas of commerce outside the reach of the commerce clause. Occupational licensing of services for example. Trading from a fixed location where the location is an essential element of the transaction is covered. If you are in Nebraska you cannot get a haircut from a barber in Rhode Island.

It’s just that technological change has caused interstate commerce to cover far more than it did two hundred years ago. Goods can be transported far more easily, services can be provided at a distance.


L2P 04.14.16 at 6:00 pm

“Occupational licensing of services for example.”

I’m pretty sure the FCC thinks it licenses the provision of broadcasting services…

The Federal government could, under it’s commerce clause power, license the CRAP out of services if it wanted to. There’s no constitutional reason doctors and lawyers are licensed by the state, for instance, instead of the Federal government. Insurance is regulated at the state level because that’s what the Feds decided to do. Those are policy choices, not Constitutional requirements.


Adam Roberts 04.14.16 at 6:04 pm

Aristophanes Acharnians?


Adam Roberts 04.14.16 at 6:04 pm

Actually, scrub that: it doesn’t fit most of your stipulations.


Sebastian H 04.14.16 at 6:19 pm

“There are areas of commerce outside the reach of the commerce clause. Occupational licensing of services for example. ”

That is a terrible example under the current living constitutionalist understanding. Performance of services in a state effects the price of similar services nationwide. If growing your own food counts as interstate commerce because it marginally changes the price of food you aren’t buying, then actually charging money for a service certainly counts as interstate commerce.


Jeff R. 04.14.16 at 6:20 pm

Uncle Tom’s Cabin?

The answer here is usually Uncle Tom’s Cabin. (See also “Greatest Pro-War Piece of Literature”)


Jeff R. 04.14.16 at 6:27 pm

(Or possibly Huckleberry Finn, although I’m not sure it fits the ‘all parties coming off unsympathetic’ one. Does have a lot more navigable waterways, at least. At any rate, I’m pretty sure I’m in the general area being aimed at.)


Brett Dunbar 04.14.16 at 6:28 pm

Services where location is an essential element. Such as hairdressing or building. Services that can be provided remotely are interstate commerce. Law differs significantly between states, so that is a case where being competent in one might make you less competent in another.

The actual conduct of the States when able to regulate something doesn’t exactly make it seem attractive. The federal government is somewhat less beholden to special interests.


Sebastian H 04.14.16 at 6:32 pm

No Brett, if the services (when viewed in aggregate) could effect the interstate price it counts as interstate commerce under the living constitutionalist view.


mdc 04.14.16 at 6:46 pm



Trader Joe 04.14.16 at 6:51 pm

I was going to guess Gone With the Wind, but maybe that’s not old enough based on the other guesses.


efcdons 04.14.16 at 6:56 pm

@8 For your services example, the current interstate commerce jurisprudence as it applies to the Fair Labor Standards Act would almost certainly encompass a barber or other local service providers. The barber gets tools like clippers from out of state. They use merchant processing for credit cards that happens out of state. It is more than just where the service itself occurs.


Sebastian H 04.14.16 at 7:06 pm

The living constitutionalist test has the virtue of being very simple to apply. It just is really difficult to imagine anything that doesn’t pass under it. (Choosing not to purchase a product definitely applies for example. I know that sounds like a strawman, but it definitely isn’t).


Brett Dunbar 04.14.16 at 9:35 pm

Odd then that the federal government hasn’t acted to regulate then. They haven’t acted to prevent states from requiring expensive training for hairdressing. Rather than simply have a general requirement that work be done competently and safely on all trades.

The credit payment might be provided remotely so the provision of that service is interstate. The actual haircut takes place at a specific location so the state is able to require licencing of the person who does it. Much like certain states forbid self-service petrol stations.


GW 04.14.16 at 9:40 pm

I was going to go with Jesus “rendering unto Caesar”, but that could only be considered fiction or a business with an asterisk next either word for “controversial.” But how about The Merchant of Venice?


Dean C. Rowan 04.14.16 at 9:47 pm

Can we ask for a hint or two? Is it old-Aristophanes-old? Or old-Uncle-Tom’s-Cabin-old? Or, as I was thinking, old-Sir-Francis-Bacon-or-Shakespeare-old? Uncle Tom’s Cabin can’t have been prethinking the Commerce Clause itself, but it could have prethought much of the significant adjudication that so aggravates some folks.

Completely OT, but interesting, I hope, to the CT readership: Being a librarian, I am aware of ongoing and frequent revisions to the Library of Congress Subject Headings. Last month, LC chose to remove “Aliens” and “Illegal aliens” from LCSH, replacing them with “Noncitizens” and “Unauthorized immigration.” It appears this particular LCSH revision has disturbed non-librarians in high places: I have a hard time reading The Blaze, both for its content and p.o.v., but here due to its technical unwieldiness. I can’t get the text to settle down! Anyway, once upon a time we could rely on “radical librarian” Sandy Berman to challenge all manner of LCSHs, but he would have opposed “Aliens.”


Ebenezer Scrooge 04.14.16 at 11:54 pm

I think that the modern commerce clause is better understood in a British constitutional sense than the American one. The commerce clause is pretty weak as a matter of Supreme Court jurisprudence, but is a fairly strong Congressional norm.

I doubt that the Supreme Court has formally declared family law outside the reach of the commerce clause, but “it is just not done.” (There are federal choice-of-law rules, but very little federal substantive law.) This used to be true for most criminal law, until Congress got a bit frisky. And the Supreme Court has episodically expressed its displeasure with Congress on this. The Uniform Commercial Code–of all things!–is state law, and Congressional interference with the UCC has been timid and limited. Education is another example of this–Congress has stayed far away from the direct regulation of primary and secondary education, and has not chartered any educational institutions outside the military system.


John Holbo 04.15.16 at 12:44 am

“Can we ask for a hint or two?”

Think late 1500’s-early 1600’s. I’ll post the answer tonight!


J-D 04.15.16 at 1:23 am

At 3 you use the expression ‘subject of the state’ and at 5 you use the expression ‘citizens’. Is this apparent contrast:
(a) a significant clue: or
(b) positively misleading; or
(c) irrelevant?


Peter T 04.15.16 at 1:26 am

The clue gives it away – The Merchant of Venice. But did the pound of flesh cross state lines?


Donald A. Coffin 04.15.16 at 1:35 am

L2P: ““Occupational licensing of services for example.” I’m pretty sure the FCC thinks it licenses the provision of broadcasting services…

But the FCC does not license disk jockeys, or radio news commentators, which is the relevant unit here–it’s the occupation that’s licensed (or not).


LFC 04.15.16 at 2:08 am

Dean C. Rowan @16
That’s interesting re the change in the LCSH. At this point it’s not clear that anyone is esp. upset beyond Rep. Diane Black (R – TN) — admittedly I didn’t go beyond the opening graphs of the linked article. Even if her bill were to pass the House (likely, I suppose) and Senate (less so), I’m not sure Congress’s authority over the LC extends to these kinds of cataloging decisions. Though since Congress holds the funding strings…


John Holbo 04.15.16 at 2:36 am

Citizens might be misleading. State is right.


John Holbo 04.15.16 at 2:42 am

Merchant of Venice is not it (to my knowledge!)


Sebastian H 04.15.16 at 3:35 am

“But the FCC does not license disk jockeys, or radio news commentators, which is the relevant unit here–it’s the occupation that’s licensed (or not).”

The question isn’t ‘does it’, the question is ‘can it’? Under the modern living constitutionalist interpretation the government absolutely can license disk jockeys or radio news commentators.


ZM 04.15.16 at 3:39 am

My best guess is Coriolanus with the grain price issue, I can’t think of anything else off the top of my head. Ends in entrails and tears.


Faustusnotes 04.15.16 at 4:05 am

Sebastian H, why are you invoking the “living constitutionalist” epithet here? The homegrown vegetables decision was taken in 1942 and the congress was able to force all American seamen to buy insurance in the 1790s. That congress was packed with framers, who presumably understood the written intent of the constitution, since they wrote it.

Perhaps the problem here is not that these strange decisions are the curse of “living constitutionalism” but that your understanding of the framers’ intent is completely wrong? Perhaps it is the “textualists” like Cruz and Scalia who are misreading it?


JW Mason 04.15.16 at 5:20 am

Regulating prices does sound Coriolanus. But the problem there is not deflation – there’s a scarcity of food, not money. And paramours don’t come into it. The parable of the rebellious body parts, in isolation, fits a little better, but it doesn’t end in tears.

Deflation fits Timon of Athens better. And Timon does opt out, whereas Coriolanus is exiled. I don’t remember navigable waterways coming into it but maybe I’m forgetting.


John Holbo 04.15.16 at 5:58 am

I’ve got to be out later, turns out. So I’ve posted the solution a few hours earlier than I planned. It’s Troilus and Cressida.


TM 04.15.16 at 7:49 am

I thought of the Trojan war because of the clues “navigable waters” and “paramour across state lines”. But Shakespeare is not my thing.


faustusnotes 04.15.16 at 11:10 am

Considering how much you guys whine whenever the court decides anything you don’t agree with, I wouldn’t want to have to make that distinction if I was the federal government, either.


Layman 04.15.16 at 12:28 pm

“Not by all definitions. I was in Kentucky when I bought the gas in Kentucky. The gas station undoubtedly engaged in interstate commerce when IT bought the gas. But the resale was local commerce.”

This is a pretty bad example! How much gas could you have bought absent interstate commerce?


jgtheok 04.15.16 at 12:46 pm

Hmm, Troilus and Cressida? Well, The Iliad did feel like a stretch…


Sebastian H 04.15.16 at 2:43 pm

Brett, I agree that the federal government over regulates interstate commerce, but buying internationally sourced gas (or even mixed source gas) seems pretty interstatey and commercey.


JW Mason 04.15.16 at 3:57 pm

Huh. I saw and Cressida when Shakespeare in the Park did it, but that was quite a while ago. I recall they had Achilles listening to Jimi Morrison in his tent, and his myrmidons done up like Mad Max extras. Seems like Thersites got the only really memorable lines in the play. I don’t recall anything glossable as deflation.

That it’s that play, and Pandar’s closing speech, gives a nice Graeberian (or Veblenian?) twist to your point 5. The original commerce, whose sense we are extending, is in women. The modern state as embodiment of primal pimp.


JW Mason 04.15.16 at 4:05 pm

Now this suggests Paul Mason’s idea that for capitalism to survive in a world of increasingly dematerialized and/or automated production, it will have to create space for a great expansion of affective wage labor, by commodifying great swathes of the interpersonal commons — so “would have to treat people kissing each other for free the way they treated poachers in the 19th century.”

It’s funny how in the commerce-clause context, an extension of the domain of commerce is criticized from the right as an intrusion on property rights. While the overwhelming historical case, which Mason is extrapolating from, is the use of state power to create new property rights where none previously existed. The actual alternative to commerce is not just being over here by yourself, not interfering with others; its coordination with others through all kinds of nonmarket arrangements.


JW Mason 04.15.16 at 4:26 pm

When you think about it, there’s an interesting ideological function performed by the word “commerce” itself.

1. an interchange of goods or commodities, especially on a large scale between different countries (foreign commerce) or between different parts of the same country (domestic commerce) trade; business.
2. social relations, especially the exchange of views, attitudes, etc.
3. sexual intercourse.
4. intellectual or spiritual interchange; communion.

I know it’s just an online dictionary, but it’s fun to try taking it seriously. Market exchange is a stand-in for any kind of social connections. And foreign exchange is the pruest form of exchange. Exchange of goods is equivalent to exchange of views. (It’s striking, when you read defenses of free trade by Marshall, Mills, etc., how much emphasis they put on this aspect of it, as opposed to narrow efficiency arguments.) And in the ur-form of exchange, as in the Holbo reading of Troilus and Cressida, is sexual. (Veblen: “the earliest form of ownership is the ownership of women by the able bodied men of the community.”) Finally, commerce in any of these senses is a form of spiritual communion. This reminds me of Duncan Kennedy’s line (I can’t find the exact quote at the moment) about how in a perfect system of markets, it would make no difference that the participants were different people– the outcome would be the same as a choice by a single individual sharing both their desires.

OK, back to work.


Sebastian H 04.15.16 at 4:40 pm

I look forward to the discussion of how the commerce clause justifies regulation of sexual intercourse.


TM 04.15.16 at 5:13 pm

“the earliest form of ownership is the ownership of women by the able bodied men of the community.”

This sort of idea might appeal to a certain kind of thinker, but I doubt it’s based on any empirical evidence.


Plume 04.15.16 at 5:24 pm


“I look forward to the discussion of how the commerce clause justifies regulation of sexual intercourse.”

Given that the so-called “pro-life” movement is clearly far more interested in controlling sexuality than ending abortion, it wouldn’t surprise me if they went to that well sooner rather than later. Perhaps some pretzelized conversion of RFRA and a dominionist reading of that clause. According to David Barton, a serial liar, but heavily influential in Christian-right circles nonetheless, the United States is all about the bible, founded on its “principles” and “god’s law” reigns supreme.

Now that you mention it, I’m kinda surprised they haven’t invoked the Commerce Clause on matters of sexuality already.


Francis 04.15.16 at 11:23 pm

SH: The Mann Act was passed just a few decades after the end of the Civil War. Since you’ve claimed the mantle of the sole legitimate interpreter of the commerce clause on this blog, why don’t you summarize the Supreme Court rulings upholding the law for the rest of us?

You may also want to advise the community about changes going on in American society at that time, including any concerns that the Court may have had, to quote Blazing Saddles, that certain men might be asking “Hey, where the white women at?”


Michael Cain 04.17.16 at 5:00 pm

Unless your car qualifies for classic/antique status in most states, chances are excellent that some of the electronics deciding when your spark plugs will fire came from East Asia — if not the printed circuit boards, some of the components mounted on them. If it’s a spiffy new car with a generic LCD display panel, the probability is 1.

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