Monday, March 17, 2008

David Forte on the Commerce Clause

On March 7, I was happy to attend a meeting of the local Federalist Society chapter. We heard an excellent presentation by Professor David Forte on the Commerce Clause. Forte pointed out how in most of the jurisprudence since the late 1940s the Supreme Court has given the Congress a blank check for legislating about nearly anything via the justification of the Commerce Clause. This is problematic to people who see the Constitution as attempting to set up a government of limited powers. It also seems contrary to the founders’ intent. Why specify carefully in the Constitution that the Congress had the power to legislate about things like patents and post offices if the Commerce Clause was meant to legislate about everything?

Forte points out that two of the major approaches to a more limited version of the Commerce Clause involve either a quantitative approach or a qualitative approach to how the problem the legislation seeks to remedy affects interstate commerce. Forte proposes a fourth alternative to the blank check, the qualitative or the quantitative approach based on the opinions of Judge Benjamin Cardozo. Forte believes that Cardozo was really advocating a foreseeability based proximate cause approach to Commerce Clause litigation. The Congress would need to show that the mischief they were legislating against had a foreseeable proximate causal impact on commerce. This does seem like an interesting alternative.

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