William & Mary Bill of Rights Journal


Eric R. Claeys


"Living Constitution " ideas are most often associated with individual-rights guarantees like equal protection and due process, but they were originally developed in the early twentieth century to revolutionize the law of the structural Constitution - including the Commerce Clause. In this Article, Professor Claeys interprets Progressive political theory, which played a crucial role in legitimating the expansion of the national government. As applied to federalism, Progressive living-Constitution theory required that the Commerce Clause be interpreted as a constitutional transmitter letting the national government regulate whatever the American people deem to be a national problem. He suggests that this notion of the "living Commerce Clause" played an important role in the development of Commerce Clause constitutional doctrine during the New Deal, and that it informs the hostility to recent narrow readings of the Commerce Clause like United States v. Lopez and United States v. Morrison.

Professor Claeys then uses these living Commerce Clause ideas to critique contemporary federalism case law and scholarship. At the level of doctrine, "living Commerce Clause "principles provide a sharper and clearer way to criticize Lopez and Morrison than the leading criticisms to date. At the level of interpretive theory, living Constitution theory highlights the strengths and weaknesses of a great deal of contemporary constitutional-law scholarship, which borrows from the Progressives'understandingo f a living Constitution more than it realizes. Finally, at the level of politics, if one understands the influence of and problems with Progressive living Commerce Clause ideas, one is better prepared to judge the political character of government under the constitutional principle that the national government may regulate whatever the American people deem to be a national problem.