A new People For the American Way Foundation report, “The True Spirit of The Union”: How the Commerce Clause Helped Build America and Why the Corporate Right Wants to Shrink It Today , demonstrates that a robust Commerce Clause is what the Founders intended, is essential to giving the American people effective power over our own economic and social life, and must be protected from attacks by special interests. The report is available here .
While the Commerce Clause may not be as well-known as the phrase ‘We the People,’ it provides the crucial underpinning for much of the American people’s efforts to promote democracy, fairness and social progress in our society. However, Congress’ ability to use the Commerce Clause to address pressing national issues is facing mounting challenges in court. Those challenges reflect a brand of corporate-based conservatism that has for years sought to disarm federal legislative power and enthrone the privileges of big business.
Not only has America always had a vigorous Commerce Clause, the Constitution has been amended multiple times to further enhance the federal government’s ability to devise comprehensive solutions to national problems. It is part of what makes the Constitution a progressive document, one worth protecting from the distortions of the far right. Release of this report is part of the Constitutional Progressives  campaign, which we recently launched with the Constitutional Accountability Center  and the Center for American Progress .
The report sets forth how Congress, without the traditionally expansive and muscular understanding of the Commerce Clause, would have been unable to:
- Ensure that hotels and restaurants are open to all
- Protect clean drinking water
- Enforce anti-trust protections
- Require equal pay for women
- Limit air pollution
Under the traditional interpretation of the Commerce Clause, Congress is empowered to take these steps to protect ordinary Americans. Under the conservatives’ cramped interpretation, many such laws would be rendered unconstitutional or meaningless.
“From the National Labor Relations Act to the Equal Pay Act to the Clean Water Act, many of the of the rights we depend on are derived from the Commerce Clause,” said Michael Keegan, President of People For the American Way Foundation. “Its strength and its versatility reflect the wisdom of the Founders. Its text has allowed Congress to protect Americans from racial discrimination, require equal pay for equal work and help ensure that our workplaces are safe. Now, though, a well-funded conservative assault, aided by a sympathetic Supreme Court majority, threatens to sharply curtail this vital tool. We need to preserve a fair interpretation of the Commerce Clause in order to meet the challenges of the 21st century.”
“The Commerce Clause is absolutely central to political movements and legislative efforts to improve the daily lives of Americans,” said Jamie Raskin, Senior Fellow at People For the American Way Foundation and author of the report. “Without it, everything from healthcare reform to the laws that keep corporations from poisoning our air and rivers is in jeopardy. Yet that’s exactly the traditional goal of the conservative attack on the Commerce Clause: to slice away at its central meaning until it can no longer support any law or regulation that interferes with corporate decision making, regardless of the harmful and even fatal effects on Americans.”
The report is available here .
Article I, Section 8: “The Congress shall have the Power To…regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes...”