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.