The Commerce Power and Constitutional Structure: Counterarguments

In my prior two posts here and here, I discussed why even the narrowest view of the commerce power under modern precedents – Lopez and Morrison – is inconsistent with the constitutional structure because that view renders several other enumerated powers redundant.  Here I discuss whether there are any counterarguments to my position.

One counterargument is that redundancy is not a serious matter since the Constitution contains clear redundancies.  I disagree with this view.  The standard way of writing formal legal documents, especially short ones, like the Constitution was to avoid redundancies.  As a result, courts interpreted the document to avoid reading it to contain surplusage – including in the landmark case of Marbury v. Madison.  (On the argument for following interpretive methods at the time, see here.)

It is true that the Constitution does contain a few redundancies, such as Congress’s power to establish inferior federal courts in both Article I, section 8 and in Article III, section 1.  Sometimes one can come up with an explanation for a redundancy — with the second provision added for clarification or as a limitation.  But if not, one must accept it as an oversight of the drafting process.  But the few redundancies that the Constitution contains should not be used as a justification for embracing redundancies or failing to regard redundancies as matters to be avoided.  That way lies clear misinterpretation.

Another counterargument is that the redundancies are the result of changed circumstances.  At the time of the Constitution, the commerce power was limited, but over time – due to the expansion of interstate commerce – the power came to be much broader.  Again, this has a grain of truth in it – interstate commerce certainly has grown since 1789.  The problem is that even under the degree of interstate commerce at the framing, the modern interpretations would still allow significant redundancies.  So long as a commercial activity had a substantial effect on interstate commerce, from an aggregation of individual actions, the activity could be regulated, and that would probably produce all of the examples of redundancies listed in my last post.