The Sometimes-Bumpy Stream of Commerce Clause Doctrine (Symposium: The Commerce Clause: Past, Present, and Future)

The title of this essay is a somewhat feeble use of an unoriginal pun.\u27 I am not talking about the doctrine of the stream, but about the stream of the doctrine. That is, my principal subject is not the stream of commerce doctrine, but rather the historical development of the doctrine governing Congress\u27s power under the Commerce Clause in the twentieth century, and especially in the years centering on the New Deal. My basic thesis is this: Although the doctrine developed rapidly in the New Deal era, there were no major discontinuities in it. That does not mean that it did not change, or that it only changed in a smooth fashion. Rather, I believe it developed throughout the twentieth century the way much legal doctrine develops, with a series of intellectually undramatic changes that cumulatively caused an enormous transformation in the effect of the doctrine.2 The development may be regarded as a drift towards an equilibrium that was set in motion by the conceptualization of the Commerce Clause in the nineteenth century, as allowing congressional regulation not only of that which is commerce, but also of that which is not commerce but which has a sufficient impact on commerce. Furthermore, though for nearly sixty years the limitations on the doctrine never posed a practical constraint on Congress, the Court continued to articulate a theoretical constraint. That theoretical constraint was available to be invoked at the end of the twentieth century, without doing dramatic violence to pre-existing doctrine, by a Court inclined to impose federalism-related constraints on Congress. In short, I contend that the development of Congress\u27s power under the Commerce Clause in the twentieth century was like a stream, mainly continuous, sometimes winding, but heading primarily in one direction, with some bumpy patches of rapid movement and small cascades or discontinuities, but without major breaks. Thus, I believe Justice Thomas erred when he suggested in United States v. Lopez3 that the critical New Deal cases were the result of a wrong turn that departed dramatically from a century and a half of precedent.4 They were instead a rather natural development that built on the broad structure of Commerce Clause doctrine as it had developed over the previous century, and rejected one doctrinal feature that no longer fit well within that structure. At the outset, I will lay out a simple conceptual framework. The law develops in a smooth or continuous fashion when it adopts propositions that were predictable on the basis of prior law. Note that to adopt the most predictable position does not mean that the law remains static; it is a development if the Supreme Court makes clear and certain what previously seemed most likely-and in doing so, the Court may make plausible further propositions that previously seemed improbable. A discontinuity occurs when the Court adopts a proposition that previously appeared to be contrary to the law. But the discontinuity is not a major one unless it involves a significant alteration of the underlying framework