On behalf of the national Chamber of Commerce, super-lawyer Paul Clement has authored a new paper arguing that federal tort reform is constitutional. The paper begins with a section purporting to show that the Framers’ Commerce Clause was broad enough to authorize modern federal efforts to dictate state tort law.

But on that point, the paper’s conclusion is clearly wrong.

Personally, I favor certain tort reform measures. Last year, in a widely-distributed study that Mr. Clement does not mention, I examined whether, under the Constitution’s original meaning, the federal government could enact such measures. I found a mountain of evidence that it could not—and almost nothing to suggest it could.

The evidence is of almost every kind you can name: The Founders’ historical experiences. . . their views on the balance of central and local power . . the constitutional meaning of words like “commerce” and “necessary and proper”. . . .the Founders’ explicit statements to the ratifying public. . . and on and on.

By contrast, the Clement paper rests only on two props:

(1) Single statements from Alexander Hamilton and James Madison. The Hamilton quote is a passage in Federalist No. 80: “Whatever practices may have a tendency to disturb the harmony between the States are proper objects of federal superintendence and control.” The Madison quote refers to the need for a federal commerce power because separate state governance of interstate commerce “engendered rival, conflicting and angry regulations.”

(2) The claim that the “framers” inserted the Commerce Clause to enable Congress “to remove state-law obstacles to interstate commerce. . . and to invigorate our foreign commerce.”

Neither of these props has much strength.

First: The Hamilton statement is sorely ripped out of context. In Federalist No. 80 Hamilton was not talking about the general scope of federal power, but about why the Constitution gave the federal courts jurisdiction over disputes among state sovereignties—for example, over boundaries. Hamilton was explaining that otherwise such disputes might lead to war.

On the other hand, in Federalist No. 17 Hamilton specifically tells us that “administration of private justice between the citizens of the same State. . . can never be [a] desirable care[] of a general jurisdiction.” My study quotes even stronger statements on the subject from other key advocates for the Constitution: They all represented that tort law and civil justice between same-state litigants would be none of the federal government’s business.

Second: The intent of the Constitution’s framers (drafters) does not determine the document’s original legal force.According to  the Founders’ own law, what controlled was the understanding of the ratifiers or, in absence of a clear understanding on the subject, the document’s original public meaning. Mr. Clement does not even attempt to marshal evidence on the ratifiers’ views or on the original public meaning.

Third: One purpose of the Commerce Clause was to empower Congress to trump what Madison called “rival, conflicting and angry regulations.” But Madison was talking not about all state laws, but only those considered “regulations of commerce.” These particularly included embargoes and prohibitive tariffs. Neither Madison nor anyone else thought the Commerce Clause would give Congress a blank check to overrule other kinds of state laws—and certainly not the rules governing state judicial systems.

True, the Virginia Plan considered by the constitutional convention would have invested Congress with authority to “legislate in all cases . . . in which the harmony of the United States may be interrupted by the exercise of individual Legislation.” But the convention rejected that approach in favor of more narrowly-drawn enumerated powers. Good thing, too—in part because the public never would have ratified the Virginia Plan.

Essential Reading!

Finally, a point for committed originalists: Mr. Clements’ paper suggests that the only purpose of the Commerce Clause was to facilitate or “invigorate” commerce. Not true.

The power “to regulate commerce” included not only the power to facilitate, but also the power to obstruct. Most Founders favored investing Congress with authority to “regulate Commerce” because it also would allow Congress to restrict the Indian trade (e.g., in guns) and to erect prohibitory tariffs to limit import of foreign goods.

Once the Constitution had been adopted, Congress promptly enacted both kinds of restrictions.

Rob Natelson