A Prudent Regard to Our Own Good

A Prudent Regard to Our Own Good

Pictured above: The U.S. Supreme Court building | Library of Congress image

Five weeks before the U.S. Supreme Court decided the fate of the Patient Protection and Affordable Care Act, University of Arkansas Law Professor Mark Killenbeck addressed the issue at the heart of the Affordable Care Act debate — the Commerce Clause. This in and of itself is not news — Killenbeck is a constitutional law expert often called on to explain the issues of the day. But this was no ordinary lecture: Killenbeck presented in the Court Chamber of the United States Supreme Court. One Supreme Court Associate Justice, the Honorable Sonia Sotomayor, was the host for the event and introduced Killenbeck and the lecture. Another, the Honorable Ruth Bader Ginsburg, was in the audience.


Mark Killenbeck is the Wylie H. Davis Distinguished Professor of Law at the University of Arkansas School of Law | Photo by Russell Cothren

The event, part of the 2012 Leon Silverman Lecture Series sponsored by the Supreme Court Historical Society, presented both an opportunity and a challenge. The invitation to deliver the lecture had been extended the previous October, well before the Court accepted the Affordable Care Act case for review. By the time the lecture was given, on May 23, 2012, the case had been argued, but not decided. This prompted Killenbeck to exercise extreme care, speaking as he was at the Court and before members of the Court about an issue currently pending before it and them. He accordingly focused carefully on the history of the Commerce Clause and its treatment over time by the Supreme Court, without regard to the arguments for and against the Act itself.

Killenbeck’s lecture was well received and became the lead article in a recent issue of the Journal of Supreme Court History. Killenbeck’s “A Prudent Regard to Our Own Good? The Commerce Clause, in Nation and States” summarizes and analyzes the history of the Commerce Clause, which has been at the center of centuries of debate between the states and the federal government. From civil rights to navigable waters, from the New Deal down through the Patient Protection and Affordable Care Act, the Commerce Clause — and how Congress and the United States Supreme Court interpret it — has helped define our republic.

Commerce Clause

The Commerce Clause is the enumerated power in the Constitution that gives Congress the authority “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Killenbeck illustrates that the powers granted to Congress by the Commerce Clause, and the definition of “commerce” itself, have expanded and retracted largely through the interpretations of the Clause handed down by the Supreme Court.

Killenbeck argues that to understand the Commerce Clause and its role, one must pay “close attention to three things:

  • insights gleaned from the writings of the individual aptly characterized as the Father of the Constitution [James Madison];
  • the manner in which the powers conferred and limitations imposed by Article I, section 8, clause 3 [the Commerce Clause] have been interpreted and applied; and
  • the need to be “practically wise,” in particular to shape and apply rules in Commerce Clause matters that reflect “wisdom applied to practice.”

The Commerce Clause arose, as did the Constitution itself, from what Madison called “the mortal diseases of the current constitution,” which described what Killenbeck calls “two serious, interrelated problems: a dearth of authority at the national level, and overindulgence of authority at the state level.”

The newly created United States were proving anything but united. States imposed tariffs and restrictions on one another, and some states refused to pay taxes to the nation. And, under the Articles of Confederation, the national government had no authority to do anything about it. The individuals who framed and ratified the Constitution wanted to cure these ills. Their goal was to create an effective, empowered federal government, and save a nation from dying in its infancy.

Though it numbers but 16 words, the Commerce Clause has proven to be one of the most pivotal passages in the Constitution. To better understand it, Killenbeck argues one must turn to Madison — his thoughts and writings — whose influence is found everywhere in the Constitution and Clause.

A Want of Concert

In 1787, Madison wrote the essay Vices of the Political System of the United States. Though the essay has been largely overlooked in the subsequent centuries, there is no denying its echoes can be heard in the Constitution. In it, Madison argues that the citizens of the United States must exercise “a prudent regard to their own good as involved in the general and permanent good of the Community.” Madison makes the case for addressing both the shortage of federal authority and the excess of state authority.

In particular, commerce and commercial interests are examined in Vices including “Trespasses of the States on the rights of each other” and, in particular, “A ‘want of concert in matters where the common interest requires it,’ a flaw ‘strongly illustrated in the state of our commercial affairs,’ to the point that ‘the national dignity, interest, and revenue [have] suffered from this cause.’”

Vices provides a valuable lead-in to the more commonly discussed The Federalist, the series of 85 essays written by Madison, John Jay, and Alexander Hamilton to build support for the ratification of the Constitution. In Federalist 42, Madison addresses commerce directly:

“The defect of power in the existing confederacy, to regulate the commerce between its several members, is in the number of those which have clearly been pointed out by experience. To the proofs and remarks which former papers have brought into view on this subject, it may be added, that without this supplemental provision, the great and essential power of regulating foreign commerce, would have been incompleat, and ineffectual.”

Killenbeck follows by writing that “Article I, section 8, clause 3 lies accordingly at the heart of the attempt to form a ‘more perfect union.’ That government would look outward, by design leaving most internal matters to the states. But it could do so only if it could bring order to its internal commercial affairs.”

Interpretation and Application

Killenbeck’s article moves on to consider “the process of interpretation and application” of the Commerce Clause by Congress and the Supreme Court. In a number of bills, early Congresses demonstrated that they “viewed the Commerce Clause as having a large regulatory scope.”

For instance, 1790’s An Act for the government and regulation of Seamen in the merchants service “functioned as the early equivalent of a code of labor relations, mandating ‘an agreement in writing or in print, with every seaman or mariner on board’ a ship ‘bound from a port in one state to a port in any other than an adjoining state.’”

Killenbeck argues that this and other acts show that the widely accepted view that our founding fathers took a narrow interpretation of the Commerce Clause should at least be questioned, if not rejected. As he writes, “I am suggesting that a post-Convention congressional process of liquidating and ascertaining the meaning of the text offers compelling evidence of a broader and more nuanced reading of the Commerce Clause than one might expect.”

An overview of the Supreme Court decisions follows. Killenbeck touches on the decisions chronologically “to illustrate what [he believes] have been the three historic trends: exposition, dispute, and resolution.”

The exposition section begins with consideration of Gibbons v. Odgen, notable not only for being the first case in which the Supreme Court wrestled with the Commerce Clause but because “we can actually find virtually everything we need to determine both original understandings and most aspects of modern Commerce Clause doctrine in Gibbons, properly read and understood.”

The Gibbons court considered three important questions: what exactly is “commerce”; what is, or should be, the fate of state measures that purport to deal with such matters; and, in a closely related vein, is the federal power to regulate commerce exclusive or concurrent?

In answering those questions, Chief Justice John Marshall embraced a broad view of the positive federal power to regulate commerce, one that simultaneously respected concurrent state authority to regulate for the health, welfare, and safety of its citizens but also emphasized the power of the federal government to address and deal with “those internal concerns which affect the States generally.” This means, Killenbeck argues, that it is simply not correct that the Supreme Court made an ill-advised turn from the interpretations of Gibbons during the New Deal. Rather, Killenbeck believes, that the “wrong turn” happened much earlier, “when the principles espoused by Madison and Marshall were forgotten and the foundations laid by Marshall in Gibbons were abandoned.”

The substantial majority of the decisions issued in the wake of Gibbons tended to favor the authority of states and call into question the ability of Congress to act. As such, they represent what Killenbeck has labeled as the second phase of Court treatment of the dormant and positive commerce clauses: a process of dispute, by which he means the development of an approach to the Commerce Clause by a Court that is much more attuned to and sympathetic to issues of state sovereignty than was the case under Marshall.

The third historic trend, resolution, refers to the interpretations of more recent years that, Killenbeck writes, have “brought us back to a close approximation of what I think Madison in particular had in mind as he surveyed matters prior to the Constitutional Convention and then worked diligently to fashion, ratify, and implement a Constitution that would help secure ‘a more perfect union.’”

The Constitution was written as an outline meant to guide and be interpreted by subsequent generations, a point on which Madison and Marshall agreed. As Killenbeck points out, the danger is two-fold and familiar: “the corrosive influence of looking to local or individual needs, rather than those of the nation” and “the temptation to cut corners.” Though the Court has historically taken a deferential role in relation to Congress, it nevertheless is a safeguard “in a political and legal regime within which the Court has the final say on matters of constitutional interpretation.”

Practical and Wise

In this way Killenbeck brings the reader full circle to Madison and his appeal for a “prudent regard for our own common good.”

Justice Sandra Day O'Connor | Library of Congress image

Justice Sandra Day O’Connor | Image from the Collection of the Supreme Court

Madison believed that “the fundamental principle of republican Government [is] that the majority who rule in such Governments, are the safest Guardians of both public Good and of private rights.”…[W]e can do no better than to keep in mind the central lessons of Madison’s Vices; lessons that instruct both as to the reason for granting federal powers and the ends toward which they are properly directed. Which is another way of saying that it is incumbent on all of us to exercise ‘a prudent regard to [our] own [collective] good as involved in the general and permanent good of the Community.’ To be, as Madison expected of us, both practical and wise.

As is always the case, the arguments Killenbeck makes are just that: positions he embraces based on his reading of the historical record. The importance of the issues makes these matters deeply contested, residing as they do at the heart of what former Justice Sandra Day O’Connor characterized as “our oldest question of constitutional law,” the relationships and allocations of power between and among the people, the federal government and the states.

It is accordingly hardly surprising that the debate continues, with Killenbeck deeply involved. Indeed, he returned to the Supreme Court on October 9, 2014, once again at the invitation of the Supreme Court Historical Society, to present the historical overview for a reenactment of M’Culloch v. Maryland, decided in 1819 and considered by many to be the most important case in the history of the Supreme Court.

A case, it should be noted, about which Killenbeck has written extensively in both articles and in the first book ever published devoted exclusively to it, M’Culloch v. Maryland: Securing a Nation. 

About The Author

University Relations Science and Research Team

University Relations Science and Research Team

Matt McGowan
science and research writer
479-575-4246, dmcgowa@uark.edu

Robert Whitby
science and research writer
479-387-0720, whitby@uark.edu

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