Sunday, April 1, 2012

Enumerated Powers & the Commerce Clause

The health care law debate in front of the Supreme Court was a treasure trove of interesting things to think about from health care economics to political economy and politics and even ethics. Economists have been posting their thoughts on other blogs recently, and its interesting to see where other economists come down on certain issues.

In this post on Cheap Talk, Sandeep Baliga argues:
... Justice Scalia, Roberts etc can be forced to buy broccoli by law.
What is then the limiting principle? The commerce clause has no limiting principle, according to me, a non-lawyer. The limiting principle is the imposed by politics: any politician who seeks to regulate the broccoli market must run for election. This politician will reach the limit of his political career.
There are two issues in this statement, and in this post I want to deal with the first: Does the commerce clause give Congress unlimited power? I disagree with Sandeep and think that only a lawyer can come to the conclusion that the answer to this question is yes.

When reading a book, article, etc., one always keeps in mind the main message or point. Language is limited and it cannot be that one unclear phrase or part of a sentence can rewrite the entire meaning of the text when many clear sentences and phrases are present elsewhere (for clarification of this principle, see How to Read a Book: The Classic Guide to Intelligent Reading by M.J. Adler and C. Van Doren). For some reason this general "reading principle" seems to be most ignored by people when reading important texts. In the Constitution's case, the whole point is to give the central government limited powers which are then enumerated. Any reading of any particular clause to mean "the central government can do anything" must be incorrect. 

Madison even argues this point in Federalist 41 in response to a similar criticism of the Constitution in his day: that the taxing power of Article I Section 8 gives the government unlimited power:
It has been urged and echoed that the power "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States," amounts to an unlimited commission to exercise every power which may be alleged to be necessary ... If the different parts of the same instrument ought to be so expounded as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power?
Madison goes on to note the particular phrase "their common defense, security of their liberties, and mutual and general welfare" appeared in the Articles of Confederation, and no one was arguing that the central government was all-powerful there. 

In commenting on the commerce clause specifically, Madison in Federalist 42 clearly states that the phrase "and among the several States" was included just to make the power of regulating commerce between nations complete by protecting states from "improper contributions levied" on goods passing through other states on its way to the world market. In some sense, it was just meant to be a free trade agreement among the States. Unfortunately, the Supreme Court in the past has expanded the commerce clause way beyond this original intent. I am with John Cochrane in hoping the ruling on the health care law reigns in this over-reading of the commerce clause.


  1. Interesting reference to the "How to Read a Book." At some point, I'll have to give that a read (hopefully, I won't take anything out of context!)

    In that spirit, I appreciate your point about how a legal reading of the constitution should take into account the spirit in which it was written (enumerated powers, and the like).

    Just one quibble in phrasing. I think the phrase "only a lawyer" suggests a stronger claim than you wish to make. I think you mean to say that legal reasoning based on the Constitution should be like gleaning the meaning from a book. Lawyers are trained to read the law with intent and precedent in mind, but this need not be a skill confined only to lawyers.

    1. Yes, that is what I meant; I was just using some hyperbole since Sandeep references his state as a non-lawyer.