The Limits of the Interstate Commerce Power: How to Decide the Close Cases

Abstract

In the many close Commerce Clause cases, the courts must routinely confront, or else ignore, multiple problems of vagueness; of what kinds and degrees of effects on interstate commerce are constitutionally required in a given case; of how to meaningfully distinguish between 'active' and 'passive' involvement with interstate commerce; and of when and how to aggregate minimal effects on interstate commerce into a somehow substantial overall effect. Until the courts arrive at some appropriate clarification of these unresolved constitutional uncertainties, courts are better advised to direct their focus elsewhere when addressing close Commerce Clause power cases. Specifically, courts in such cases should consider whether the case circumstances detectably evoke a sense of the crucial values underlying any fundamental constitutional or human right. Violent bias-motivated attacks present the clearest such cases, and those cases should ordinarily be held to fall within the scope of the Commerce Clause power. Such cases afford the courts an opportunity to at least symbolically or expressively validate, if not to materially advance and promote, national-level policy values of the highest order. On the other hand, if a close Commerce Clause case evidently bears no such detectable relationship to any fundamental constitutional or human right, the courts should normally accommodate instead the values and interests served by federalism, and hold the case to fall outside the scope of the Commerce Clause power.