Conservatism’s Constitutional Agenda

Since the 1990s, legal conservatives have been engaged in a two-front war against legal liberalism.

Throughout the twentieth century, the Commerce Clause was the primary constitutional instrument of American liberalism. It underwrote the New Deal, the right to organize unions, the Civil Rights Act, and anti-discrimination in the workplace. Beginning in the 1990s, conservatives have beaten back the Commerce Clause. Where legal liberals expanded the meaning of commerce to include not only the entirety of the economy but also what affected that economy—whether it be racial segregation, violence against women, or handgun possession near schools—legal conservatives have sought to radically restrict the meaning of commerce to, in some cases, simple trade or “exchange for value.” In taking away this constitutional instrument from American liberalism, legal conservatives seek to restrict the ability of the government to regulate or involve itself in the economy as it had under the New Deal.

In tandem with this effort to restrict the meaning of commerce, legal conservatives have radically sought to expand the First Amendment protections of commercial speech. Commercial speech—think advertising, though it extends far beyond advertising—was initially deemed by the Court not to be worthy of First Amendment protection. Then, in the 1970s, it acquired some First Amendment protection on the grounds that consumers were entitled to receive information about products of interest and concern to them. This, it should be noted, was an argument pioneered by liberals on the Supreme Court; Justice Rehnquist, the Court’s staunchest conservative, resisted that move. More recently, however, conservatives have discovered the utility of the argument. If commercial transactions can be re-described as either modes of speech or involving significant elements of speech—and, when you think about it, what commercial transaction does not involve speech?—and if that speech is deserving of First Amendment protection, the state’s ability to regulate virtually every part of the economy will be radically restricted.

That, in a nutshell, is the conservative constitutional agenda against the liberal state: restrict the meaning of commerce and the scope of the Commerce Clause, expand the meaning of commercial speech and the scope of the First Amendment’s protections.


  1. John Maher May 11, 2016 at 11:23 am | #

    Having litigated Commerce Clause cases before Bush appointed federal judges, I can say firsthand that Conservatives see the Commerce Clause as protecting local municipal ability to regulate even when such is anathema to Conservatives. A bit different than the anything goes theme of Conservative use outlined today. Then again there is Citizens United. This brief post is a considered and insightful meditation but the topic is deeper and obviously recalls a permutation of Hamilton-Jefferson and the unresolved tension on that chord of the American political scene.

  2. Richard Girard May 11, 2016 at 4:27 pm | #

    Always remember: Neo-liberalism is not real Liberalism: it is a watered-down, slow motion version of Conservative economics, and like its full-strength brother, has little use for the Commerce Clause or its uses. Only real Liberalism, as exemplified by FDR’s New Deal, will save our Democracy, the middle class that is essential for its existence, and the rights and privileges that are necessary for the American middle class to rise from its death bed.

  3. ron bruno May 11, 2016 at 8:00 pm | #

    The fundamental issue underlying the expansion of First Amendment rights and restrictions on the powers of the Commerce Clause is the size and scope of the federal government. Though conservatives have been every bit as guilty as liberals in abusing the Commerce Clause in the past, the current impetus is to reduce the size and power of the federal government and to return to the principles of limited government, which has a constitutional imprimatur. Conservatives are openly opposed to many facets of New Deal liberalism, not least of which are the strain of excessive dependency on federal largess. Yes, conservatives have relied on federal largess as well and are certainly not above hypocrisy.

    Conservatives have faith in free markets, limited government and the rule of law as guarantors of freedom. Hayek elucidated this faith in great detail. Alas, this faith is fragmenting as the the ostensible party of conservatism is about to nominate a celebrity with an authoritarian bent who shows little concern for these principles. Limited government has limited appeal at the voting booth indeed. Economic activity and the political process have become so intertwined that it seems unlikely the regulatory zeal of the New Deal will be undone at the polls. Economic stagnation and polarization may precipitate a breakdown in the political process under these circumstances. 2016 is certainly an unusual election…

  4. Eric Apar May 12, 2016 at 10:59 am | #

    I think this underscores two points that are fundamental to understanding the constitutional terrain on which ideological struggles are waged. The first is that the Commerce Clause has always been a shaky foundation for progressive reform. If we’re being candid, we have to acknowledge that the reforms that the Commerce Clause has underpinned haven’t truly been about commerce at all; they’ve been about redressing social injustices. On that point, there’s a very interesting law review article by James Gray Pope entitled “The Thirteenth Amendment Versus the Commerce Clause: Labor and the Shaping of American Constitutional Law, 1921-1957.” Pope examines the internecine labor battles between labor activists, who wanted to root the Wagner Act in the Thirteenth Amendment’s ban on involuntary servitude, and labor lawyers, who thought the Commerce Clause would serve as a safer and more broadly palatable constitutional basis for labor legislation. To my mind, as long as there’s a disjuncture between the nature and purposes of the Commerce Clause and those of the legislation it’s supposed to justify, the Left’s constitutional agenda will remain vulnerable.

    The second point is related to the first. Where the Right has vigorously pressed the case for originalism over the past few decades, the Left has not had a robust jurisprudential philosophy since the Warren Court. Where the Right has found compelling juridical exponents for its constitutional vision in Scalia, Thomas, Bork, and others, the Left has contented itself with anodyne liberals of the Ginsburg and Brennan variety–liberals whose voting patterns broadly advance progressive causes, but whose jurisprudential philosophies (to the extent they exist) do nothing to lay the foundation for an enduring jurisprudence of the Left. There is, in fact, an unfortunate parallel between the Right’s co-optation of the political discourse over the past several decades and its capture of jurisprudence. Just as the Right has forced the Democratic Party to wage political battles on the Right’s own ideological terrain, so too has it induced juridical liberals to utter the shibboleths of “original intent,” “strict constructionism,” and “judicial restraint.”

    I say that the second point is related to the first because it’s going to take a new kind of juridical Left to advance the constitutional arguments that would truly secure a progressive constitutional vision. As the debate over constitutional interpretation stands, there is no voice for conceiving of the Constitution as an emancipatory instrument. If we’re to have such a conception of the Constitution, we’ll need attorneys and judges who are willing to root emancipatory legislation–legislation protecting labor, civil rights, and social goods like health care and affordable housing–in the emancipatory provisions of the Constitution. And that means reinvigorating the Fifth, Thirteenth, Fourteenth, and Fifteenth Amendments. The Commerce Clause has always been an awkward vessel for progressive causes, but it’s a familiar and morally neutral one, just like Hillary Clinton is familiar and morally neutral. So while we’re shifting the terrain on which American politics place, let’s not forget that there is much work to be done in the juridical space as well.

  5. Warren Ingber May 12, 2016 at 2:07 pm | #

    By way of supplement to Corey’s invaluable point:

    1. Pharmaceutical advertising was one of the areas where commercial speech got first amendment protection. The principal selling point was that it would lower drug prices in the US. How’d that work out? But, on the plus side, law firm advertising has produced a fitting motto for the Supreme Court Building: “Prior Results Do Not Guarantee a Similar Outcome.” Anyone up for a petition drive?

    2. Let us not forget that the conservative judges also set out to stop the federal courts from serving as vehicles of social justice. One of the targets in Lewis Powell’s 1971 memo was the so-called private attorney general as personified in Ralph Nader. His opinion in Warth v. Seldin (1975) made the case or controversy clause into a constitutional barrier between low income residents and zoning laws, with wide repercussions in the environmental and other areas. Separately, the Rehnquist court eliminated private rights of action under federal securities and other laws unless Congress expressly created them, which it hardly ever did. Powell got his way. It was a major victory, and Roberts court rulings against class action lawsuits and upholding arbitration clauses are only the latest moves in this legacy.

    3. Even as conservative judges were sending us to elected officials to right wrongs, they were hobbling the vote. The sanctioning of voter ID laws on the pretext of voter fraud, the neutering of section 5 of the Voting Rights Act, basic indifference to gerrymandering – all of these decisions have helped reduce our democracy to a spectacle for consumption by the part of the public that loves incumbents and vested interests but hates political revolutions. The vote has ceased to be a widely accepted way to implement popular preferences. It takes work to bring this about, but our jurists have relished the task. The Florida recount was stopped because of the cloud it might cast “upon what [Bush] claims to be the legitimacy of his election.” The legitimacy of this claim was already in doubt. All the injunction did was deny doubt a place in the proceedings. Compare Anthony Kennedy’s syllogism that unlimited “independent” campaign spending could not possibly cause the public to lose faith in our democracy. Kafka might have dreamed up such pronouncements had he lived in a sclerotic democracy. But it would take a Kafka.

    4. These and similar developments are not only part of a conception of neoliberalism: they are vital to an understanding of what neoliberalism is. Yet they’re anything but common coin, even among public intellectuals. The fabric of the law is not something one can be shamed into knowing. To get a feel for this circumstance, consider the fact, as Corey notes, that liberal justices took part in many of these rulings, and not just in the free speech cases. (Justice Stevens wrote the voter ID opinion.) Anyone on the political left has long known, or should have known, what is just coming out in the Sanders/Clinton contest: that what passes as our political left has propelled neoliberalism forward. But how far are even the best educated of us from a working grasp of the same pattern within the judicial branch? And that’s just for starters.

  6. John Maher May 12, 2016 at 5:12 pm | #

    Excellent point here:

    “4. These and similar developments are not only part of a conception of neoliberalism: they are vital to an understanding of what neoliberalism is. Yet they’re anything but common coin, even among public intellectuals.”

  7. Ogden Wernstrom May 19, 2016 at 4:15 pm | #

    In related news, Conservatives who used to argue against The Fairness Doctrine (until they made it go away) now would like to apply it to Facebook.

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