With the entry of Texas Gov. Rick Perry into the race for the Republican presidential nomination, we can expect additional displays of constitutional foolery. It was bad enough when Rep. Michele Bachmann of Minnesota declared President Barack Obama’s federalist policies “anti-American” (she graduated from the law school of Oral Roberts University). It was worse when Perry inveighed against federal power, suggesting that Texas might secede from the union (again). He may have forgotten the Supreme Court holding in Texas v. White (1869) that the state’s secession of 1861 was unconstitutional; ours is an “indestructible union,” said the Court (after a horrific war).  Later, announcing his candidacy, Perry promised voters to “make Washington, D.C., as inconsequential in your life as I can,” including, it seems, repeal of the Sixteenth Amendment authorizing the income tax. Given this talk, it is fair to ask of a Perry presidency (as one Texas congressman did), “of which country?” 

The antifederalist constitutional theory that lies behind Perry-Bachmann could not be more naive, mistaken, or wilfully mischievous. The pity is that the American electorate, like thousands of Iowans at the August 13 Ames straw poll, may buy into this stuff come November 2012.

Either a bad case of constitutional amnesia has beset Perry-Bachmann or there was a grave failure in their high-school civics courses. Consider that Congress has the power to “regulate commerce with foreign nations and among the several states,” a power reinforced by the authority to make such laws as are “necessary and proper” to give effect to all other powers (Art. I, § 8). The additional declaration that such laws “shall be the supreme Law of the Land” (Art. VI) answers decisively the question whether federal or state laws are of the higher order. That result is unaffected by the Tenth Amendment— doubtless a Perry-Bachmann favorite—reserving to the states power not delegated to the federal government.

To be sure, the issue turns on interpretation of the power to “regulate commerce…among the several states." Even strict originalists, who believe that the words’ meaning was frozen by the Founding Fathers, are left in the dark of  the eighteenth century. We do have Madison telling us in Federalist No. 42 (1788) that the immediate point of the Commerce Clause (expressing the “mild voice of reason”) was to ensure free passage of goods among the states, a primary concern in the simple economy of 1788. But Chief Justice Marshall, who had been present at the Virginia ratifying convention, went further in a unanimous decision: in Gibbons v. Ogden (1824) he declared that the Commerce Clause granted Congress power to regulate “intercourse” that “concerns more states than one” except concerns that are “completely internal.” 

The great treatise of Justice Joseph Story, who sat with Marshall (and a Harvard law professor), added that “it has been held upon the most solemn deliberation, that the [commerce] power is exclusive in the government of the United States” (Commentaries, 1833). That proposition may have escaped Perry when he studied animal husbandry at Texas A&M. 

Application of Marshall’s capacious rule produced inconstant results over the ensuing decades as constitutional law experimented with a dynamic and multifarious commercial life. During the New Deal, doctrine settled down: the Court would hold that a purely local activity (growing wheat for personal consumption) with a substantial economic effect on a national quota regime could be regulated by Congress (Wickard v. Filburn, 1942). Recent case law has insisted that the Commerce Clause refers to commerce proper and is not a universal solvent. But the power of the Clause over true commerce remains and is the source of the vital national legislation that is characteristic of a decent society, from antitrust laws to the regulation of railroads, food and drugs, securities transactions, labor relations, social security, civil rights, and, now, health care. It is these towering social achievements of a modern state that Perry-Bachmann would undo.

Joseph D. Becker, a founding partner of Becker, Glynn, Melamed and Muffly, a Manhattan law firm, is author of The American Law of Nations (Judis).
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