A Prudent Regard to Our Own Good? The Commerce Clause, in Nation and States

Abstract

A Prudent Regard to Our Own Good? The Commerce Clause, in Nation and States MARK R. KILLENBECK The charge I was given was a truly modest one: the history of the Commerce Clause in forty minutes or less, the constitu­ tional equivalent of Around the World in Eighty Days. Anyone undertaking this task faces two dilemmas. The first is one all constitutional law professors routinely face: the Commerce Clause is most assuredly not what students dream of when they contem­ plate the course. But, as former Justice Wiley B. Rutledge wisely observed: If any liberties may be held more basic than others, they are the great and indispensable democratic free­ doms secured by the First Amend­ ment. But it was not to assure them that the Constitution was framed and adopted. Only later were they added, by popular demand. It was rather to secure freedom of trade, to break down the barriers to its free flow, that the Annapolis Convention was called, only to adjourn with a view toward Philadelphia. Thus the generating source ofthe Constitution lay in the rising volume ofrestraints upon commerce which the Confed­ eration could not check. These were the proximate cause of our national existence down to today.1 The second challenge is the nature of the subject. I am acutely aware that Chief Justice John Marshall felt obliged to apologize at the end of Gibbons v. Ogden, noting “the tediousness inseparable from the endeavor.”2 Cases involving Commerce Clause matters may on occasion generate considerable public interest. But the doctrines involved tend to be dry and lifeless, at least when compared to other areas of constitutional law. Hopefully what follows will overcome these inherent limitations, at least to the extent that the history proves of interest. 282 JOURNAL OF SUPREME COURT HISTORY My thesis is that all parties to the Commerce Clause debate must approach these matters in the light of the need to exercise a “prudent regard to their own common good.” That characterization comes from James Madison, who spoke of the obligation of “the people themselves”—and presumably those who represent them—to exercise “a prudent regard to their own good as involved in the general and permanent good of the Community.”3 Since our focus is on histoiy, it seems appropriate to begin with resort to one favorite interpretive technique: consulting a dictio­ nary. But not just any dictionary. So, we find in the pages of the first edition of Samuel Johnson’s magisterial A Dictionary of the English Language that a “prudent” individual is one who is “practically wise,” and, in a closely related vein, that “prudence” is “wisdom applied to practice.”4 Simply put, I believe any appropriate understanding ofthe history ofthe Commerce Clause and the role it can, has, and should play in this Compound Republic is best shaped by paying close attention to three things: • insights gleaned from the writings of the individual aptly characterized as the Father of the Constitution; • the manner in which the powers conferred and limitations imposed by Article I, section 8, clause 3 have been interpreted and applied; and • the need to be “practically wise,” in particular to shape and apply rules in Commerce Clause matters that reflect “wisdom applied to practice.”§ We begin with James Madison, whose appeal to the need for “prudent regard” is found in one of the most important and most overlooked documents in American constitutional history: his April, 1787 essay, Vices of the Political System of the United States.5 The editors of the definitive edition of Madison’s papers stressed that Vices In 1780, future Justice James Iredell (above) character­ ized certain laws passed in his home state of North Carolina as “the vilest collection of trash ever formed by a legislative body,” an assessment that underscores that the Framers and Founders lived in an era where the states were part of the problem, not the solution. was written during “perhaps the most creative and productive year of [Madison’s] career as a political thinker,” characterizing it as a “masterful” blend of “personal experience and theory.”6 Jack Rakove in turn has appropriately described Vices as “one of those rare documents in the history of political...