Written by stanley kutler   

Wisconsin Attorney General J.B. Van Hollen may have created a new gold standard for constitutional ignorance. The recent decision by a Florida federal judge striking down the whole of the new law, a decision at odds with two other rulings, nevertheless prompted Van Hollen to declare that “effectively, Wisconsin was relieved of any obligations or duties that were crated under terms of the federal health care law.” Even the federal judge stayed his ruling pending appeal.

Van Hollen’s statement takes one's breath away, and puts him in the ashcan with South Carolina and other states that have ventured various forms of interposition. That civil war ended nearly 150 years ago – or so we thought. Van Hollen quickly retreated, saying he had not advised the governor to halt its implementation in Wisconsin. (After recently assuming office, the governor rejected millions of federal dollars for a proposed Midwest high-speed rail system. He wanted the money instead for road builders, who lavishly supported him. The Obama Administration wisely rejected his demand, as he had good reason to know.)

The expansive, nationalist interpretation of the commerce clause is not a New Deal phenomenon; instead it originates at the very dawn of constitutional interpretation in the early 19th century. Yet the Florida decision boldly rejected nearly two centuries of Supreme Court rulings upholding a broad sweep of congressional power under its authority to regulate commerce among the several states. Judge Roger Vinson’s ruling might best be remembered as a new benchmark for judicial activism.

Such are the times – not too different from the past, but just more heated and widespread – that constitutional clashes are inevitable. The framers of the Constitution themselves did not foreclose future debates. Their words sometimes were vague, laying a foundation for a later variety of views, but after all, it is not a statute, but a constitution we expound, as John Marshall, the first great Chief Justice, eloquently stated, and, he added, one intended “to endure for ages to come.”

Vague? Of course. The Constitution provides that Congress may pass all laws “necessary and proper” to carry out its powers; it may “tax and spend for the general welfare”; and it may “regulate commerce among the several states.” What does it all mean? When? In 1787? 1887? 1954? Only Robert Bork and his Ouija board can divine certainty in the framers’ intentions. James Madison, who later became the nation’s fourth President, undoubtedly would stagger with wonderment at the 21st century’s (and 19th and 20th, too) construction of Article Two and presidential powers.

If the Constitution is fighting words, it would help if competing views were grounded in fact, reality, and above all, history. After all, the Constitution is rooted and understood in terms of its history; without that, it is merely an isolated document, portraying a moment in 1787. We can do without the arriviste Michelle Bachmann to tell us exactly what its words mean.

Historically, conservative, nationalistic judges have carved out a tradition of broad construction of the commerce clause. Those who would retreat from or reject that tradition must abandon any pretense to their “conservatism.” The commerce clause is intimately linked with the organization of political forces driving for a new constitution, and the framers accordingly recognized the chaotic interruptions of commerce by states eager to protect their own products and provide further means for raising revenue.

Marshall’s landmark ruling in Ogden v. Saunders in 1824 offered the first extended discussion of the commerce clause since its inception. The Chief Justice predictably framed the scope of the commerce clause and congressional power in his typically latitudinarian fashion. “Commerce,” he said¸ “undoubtedly, is traffic,” but he added: “it is something more; it is intercourse.” Strict construction he insisted “would cripple the government, and render it unequal to the objects for which it is declared to be instituted.” And surely today’s self-proclaimed conservatives must love Marshall’s deference to Congress, whose power is ”plenary,” limited only by legislative “wisdom and discretion.” Marshall, ever anxious to steer the Court away from political questions, effectively denied a judicial role in restraining Congress.

A later Supreme Court attempted to limit congressional power and establish another direction in the Knight case in 1895 when it ruled manufacturing was not commerce and the federal government lacked authority to regulate the great emerging monopolies of the time. The Court held that the sugar refining industry – 94% controlled by one conglomerate -- was engaged in manufacturing, not commerce, and thus free from anti-trust regulation.

The decision proved exceptional and limited. But the conservative majority of the Court in the 1930s, overtly hostile and contemptuous of the New Deal, vigorously revived it, thwarting early attempts to bring economic order and reform. Yet, the post-Knight history of Supreme Court commerce decisions marked a steady limitation, if not retreat, from the arbitrary distinction between manufacturing and commerce.

William Howard Taft, an eminent conservative yet one who endorsed most of the progressive goals of his time (pay attention Glenn Beck!), had an unhappy presidency, but ended his career just where he always wanted to be: Chief Justice of the United States, 1921-30. As a lower court judge, Taft found the Knight precedent perplexing and he neatly skirted it. Then and later, Taft's rulings on commerce consistently advanced a broad construction of national power. At one point, he wrote that the commerce clause “is exactly what it would be in a government without states, and ... include[s] all that a legislature ... could do in regulating commerce..., except” to take property without due process of law. Taft had one quirky exception to his expansive views on commerce with his rejection of federal attempts to regulate child labor.

Taft’s commerce clause opinions became the foundation for the Court's rulings in the 1930s upholding broad federal power over commerce to bring order in the economic system. Endorsing the government’s program of labor relations, for example, the Court embraced the views of Taft and rejected the artificial production-commerce distinction. In his opinions, Taft’s successor, Chief Justice Charles Evan Hughes, returned the Court to its longstanding tradition, and he shrewdly embraced the opinions of his impeccable, conservative, constitutionalist predecessor.

What will the Supreme Court decide on the new healthcare law? First, Justice Clarence Thomas's position should offer no mystery. Some quarters have demanded he recuse himself given his wife's outspoken challenge to the health law. Virginia Thomas has been forthright:”I want to repeal Obamacare.” Never mind; her influence is beside the point for Thomas consistently has supported a narrow construction of the commerce clause and limitation on federal power, approvingly citing the decisions of the “Four Horsemen,” as the rejectionist, conservative judges of the 1930s were called. Thomas sometimes seems more comfortable with the Articles of Confederation, the failed authorization for a national government that had preceded the adoption of the Constitution in 1787. If conservatives are said to look backward, then Thomas clearly owns the longest view.

Predictions and hopes for the rest of the Court’s stand on the health legislation abound. The Justices decide law, not their own personal, political preferences – as conservative commentators so correctly remind us. They are not members of Congress, pursuing partisan, ideological goals, but rather they are members of the nation’s highest court, one deeply steeped in respect for the Constitution, a constitution encased in precedent and history -- a district judge in Florida and a partisan, puny attorney general in Wisconsin, notwithstanding.

Stanley Kutler is the author of The Wars of Watergate, and other writings.