Do You Hate The Commerce Clause? [Dave at Garfield Ridge]

If you consider yourself either conservative or libertarian, the Commerce Clause keeps you up at night. The recent Supreme Court decision Gonzales vs. Raich-- you know, the medical ganja one-- was decided on account of that most infernal of jurisprudential reasons, the Commerce Clause.

Friend of the blogosphere Sobekpundit recently had two excellent posts covering the Commerce Clause, both as it applied in Gonzales vs. Raich, as well as the 70+ year history of its abuse.

The problem with the Commerce Clause stems from its convenient flexibility. Need a law to prevent racial discrimination? Rely on the Commerce Clause. Need a law to regulate gun ownership? Rely on the Commerce Clause. Need a law to prevent medical marijuana? Rely on the Commerce Clause.

Unfortunately, using the Commerce Clause as the tool of constitutional reform is like using your butter knife as a screwdriver. It may work in a pinch, but eventually it ruins both your knife AND your screws.

Whenever conservatives have criticized this legal kluge, liberals reply with hysterical reproach, using conservative opposition to the legal mechanism as evidence of conservative opposition to the intended reform. Thus, criticism of the use of the Commerce Clause to justify 1960s civil rights legislation is repeatedly confused with criticism of the purposes of said legislation; a handy excuse for liberals to call conservatives racist.

The truth is that any conservative could highlight a number of constitutional provisions that would better apply to this situation without invoking the Commerce Clause (Section 1 of the 14th Amendment should have been sufficient for civil rights cases, although granted, it says nothing about *private* discrimination). Because, as has proven the case, use of the Commerce Clause has spiraled out of control, far beyond whatever rationale the Founders could possibly have intended for this very basic rule.

Of course, the near-infinite flexibility of the Commerce Clause as it is presently interpreted serves activist liberals very well, because it provides the fundamental principle for the "living Constitution." If anything can be read into the text of the Constitution, then the Constitution does not exist. This may be expedient for the laws that we can all agree are desirable-- such as basic civil rights legislation-- but such an interpretation eviscerates the protection that we require from the laws that everyone but an activist judge can agree is undesirable.

I find myself increasingly wondering-- if I could rewrite the U.S. Constitution today, what would I add? What would I delete? What would I clarify, and what would I obfuscate?

What would *you* do?

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UPDATE: In Friday's Washington Post ("free" registration required; jerks), Charles Krauthammer wrote about the judicial philosophy of Justice Thomas, including a discussion of the Commerce Clause.

Oh, and Krauthammer writes about it ten times more eloquently than I do. Dammit.

posted by Ace at 08:50 PM

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