Texas Gov. Greg Abbott (R) proposed a series of constitutional amendments on Friday that would so fundamentally alter our founding document that it would be akin to throwing out the system of government established by the Constitutional Convention of 1787 and replacing it with something entirely different. The amendments are a hodgepodge of efforts to restore constitutional interpretations that briefly gained traction beginning in the Gilded Age, proposals to implement longtime Republican fantasies, and ideas drawn from the fringes of talk radio and the legal academy. Though Abbott’s new constitution would maintain the federal government’s current division between executive, legislative and judicial branches, the powers of all three branches would be diminished so significantly that the new system of government would be barely recognizable to students of our current system.
Indeed, Abbott would place restrictions on the federal government that are so severe, both national child labor laws and anti-lynching laws would be unconstitutional under his proposals.
Repealing The Twentieth Century
Abbott’s amendments are a hodgepodge of irrelevancies, curiosities and apparent efforts to return America to the golden years of the Hoover administration. One proposal is to “restore the balance of power between the federal and state governments by limiting the former to the powers expressly delegated to it in the Constitution,” a proposed amendment that’s already in the Constitution as the Tenth Amendment (although Abbott clearly disagrees with how many of Congress’s powers have been interpreted). Another amendment would “require a seven-justice super-majority vote for U.S. Supreme Court decisions that invalidate a democratically enacted law,” which is a somewhat surprising choice for the governor of a state that is so eager to sue the federal government to halt policies it disagrees with.
Abbott’s first proposed amendment, however, indicates just how drastically he would like to shrink the role of the federal government. That one seeks to “prohibit congress from regulating activity that occurs wholly within one state.”
For much of American history, judges, scholars, lawmakers and even presidents battled over the proper meaning of Congress’s constitutionally granted power to “regulate Commerce . . . among the several States.” The first Supreme Court opinion to interpret this language read it expansively. There is “no sort of trade” that does not constitute “commerce” according to Chief Justice John Marshall’s opinion in Gibbons v. Ogden.
The word “commerce,” moreover, reaches beyond trade to encompass what Marshall called “intercourse.” As Yale law Professor Jack Balkin explains, “intercourse” includes a broad range of activities:
“Commerce” meant “intercourse” and it had a strongly social connotations. “Commerce” was interaction and exchange between persons or peoples. To have commerce with someone meant to converse with them, meet with them, or interact with them. Thus, commerce naturally included all trade and economic activity because economic activity was social activity.
The primary limit on Congress’s power to regulate commerce stemmed from the words “among the several states.” These words, Marshall wrote, limited Congress’s authority to “commerce which concerns more States than one.” In a pre-industrial economy, this was a very meaningful limit because many local communities had fairly self-contained economies. A farmer might grow his own crops, prepare them for sale entirely within a single state’s borders, and sell them at a market just up the road. At no point would any part of the production or sale of these goods cross state lines, and no farmers from distant communities other states competed with local farmers at the marketplace. So the local farmer’s activities were beyond the reach of Congress.
Then came what is probably the single most transformative event in America’s economic history: the building of the railroads. As I explain in my book, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, prior to the transcontinential railroad, it took about 118 days to travel from America’s east coast to its west coast. After just one rail line connecting the coasts was completed, it took only six days.
This interconnectedness is what allowed the growth of multi-state businesses and forced even many of the most localized producers into competition with people from another state. To give just one example, in the 1870s nearly all grain grown in the Midwest traveled to Chicago, where it would be stored in warehouses owned by a handful of firms. There, it would wait until it could be shipped even further to purchasers in many different states or even in Europe. The local farmer was now part of a complex chain of commerce that “concerns more States than one.”
Yet, even as the railroads enabled new nationwide corporations that presented regulatory challenges that had not existed in a younger America, the Supreme Court of this age grew increasingly dominated by conservatives who imposed new doctrines preventing federal law from addressing the newly nationalized economy. One of the most significant distinctions drawn by the justices of this era was between the transit and sale of goods, which the Court deemed to be part of its definition of “commerce,” and activities such as “manufacture, agriculture, mining [and] production in all its forms,” which it deemed to be beyond the reach of Congress. This distinction formed the basis for various decisions thwarting federal business regulation, including a particularly notorious case invalidating federal child labor laws.
Abbott’s proposal for an amendment prohibiting “congress from regulating activity that occurs wholly within one state” is an attempt to recreate the doctrines that led the Supreme Court to strike down child labor laws. In a white paper explaining his proposals, he endorses the view — which was discarded by the Supreme Court nearly 80 years ago — that “commerce” means only “the ‘trade’ or ‘exchange’ of goods—as distinguished from manufacturing, agriculture, or other means of producing the goods that would eventually be traded or exchanged.”
Yet his actual proposal is significantly more radical than any previous Supreme Court decision. Past decisions, after all, merely limited the federal government’s power to regulate “commerce.” Congress’s other powers, such as its power to spend money to “provide for the common defense and general welfare of the United States” or its power to enforce civil rights protections written into the Constitution after the Civil War, were untouched by Gilded Age decisions narrowing the definition of “commerce.”
Abbott, by contrast, would forbid the federal government from “regulating activity that occurs wholly within one state.” If a local sheriff’s department, for example, actively led lynch mobs against African Americans, Abbott’s proposed amendment would forbid the federal government from stepping in unless these lynch mobs somehow crossed state lines.
Indeed, it’s difficult to count the laws that would cease to exist if Abbott’s prohibition on federal laws regulating any activity that occurs entirely within one state were written into the Constitution. Most workers, for example, do not cross state lines during the course of their workday, so the web of laws regulating the workplace would likely have to go. To give just one other particularly salient example, few restaurants are built straddling a state line, so the federal ban on whites-only lunch counters also would likely be unconstitutional since the actual act of serving food at such a restaurant occurs entirely within one state. A short list of laws that would either be drastically shrunk or invalidated entirely if Abbott got his way includes “the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the sick leave portions of the Family and Medical Leave, the Freedom of Access to Clinics Act, as well as minimum wage and maximum hour laws and labor and environmental laws.”
A Stew of Radicalism
It’s worth noting that Abbott’s plan to effectively undo much of the twentieth century is only one part of his agenda. His other proposals include a balanced budget amendment, two amendments that appear designed to shut down regulation from agencies such as the Environmental Protection Agency and the Department of Labor in its entirety, an expansion of state officials’ ability to sue the federal government, and proposals allowing a two-thirds supermajority of the states to “override a U.S. Supreme Court decision” or “override a federal law or regulation.”
The proposal to allow two-thirds of states to repeal a federal law mirrors a similar proposal by Randy Barnett, a libertarian law professor who has also suggested that Social Security violates “the original meaning of the Constitution.” Such a proposal also appears in The Liberty Amendments, a book by the popular right-wing radio host Mark Levin.
Were this proposal to become part of our founding document, it would build upon one of the greatest anomalies in the original Constitution. Because our Constitution gives each state two senators, regardless of whether anyone actually lives there, a voter in Wyoming effectively enjoys 66 times as much representation in the Senate as a voter in California. Wyoming’s two senators represent just 0.18 percent of the nation, but they still receive two percent of the Senate’s votes. Allowing a supermajority of states, as opposed to a supermajority of voters, to repeal a law would expand upon this favoritism towards small states.
In any event, however, such a repeal amendment could be irrelevant if Abbott’s full package actually became part of the Constitution. His other proposals would hobble the federal government so severely that it’s not clear that it could pass many laws at all.