Using Superprecedent to Save the Commerce Clause

Warning:  this post contains very little property-related content, though it does touch on the FHA.

The idea of superprecedent has generated a lot of commentary recently, and is likely to be a major topic in the Alito confirmation hearings.  The basic idea seems to be that the Supreme Court should be even more reticent than usual about overturning a precedent if that precedent has been repeatedly affirmed and has become a settled part of the public understanding of a particular Constitutional issue.  Although the issue is often discussed in the abstract, the focus of the debate has been on whether Roe v. Wade has achieved superprecedent status.

I have to say at the outset that I have some doubts about the entire idea of superprecedent -- the Justices take their oath to uphold the Constitution, and if they truly believe that a precedent is contrary to the Constitution, then they should vote to overturn that precedent, super or not.  But I want to suggest a possible strategic use of the concept of superprecedent by those who (like me) believe that the Constitution actually means what it says when it created a federal system in which the federal government has limited and enumerated powers.

The modern Supreme Court has interpreted the power of the federal government to regulate interstate commerce so broadly that it has essentially written the Commerce Clause, and with it the idea of limited federal power, out of the Constitution.  The idea of interstate commerce at the margins can be fuzzy, but at its core it really isn't a hard idea to understand.  It also isn't hard for ordinary people to figure out whether a particular law passed by Congress constitutes a regulation of interstate commerce.  Every year, I go over the text of the Fair Housing Act with my Property students and ask them whether Congress was regulating interstate commerce when it passed the FHA.  Usually about 15% of the students raise their hands.  I then ask those students if they had an undergraduate course in Constitutional Law; invariably they all did.  To the other students, who have not yet had their minds polluted with the Court's Commerce Clause jurisprudence, the nature of the FHA is abundantly clear:  it is a law prohibiting discrimination in local housing markets, not a regulation of interstate commerce.

The unfortunate result of reading the Commerce Clause to mean what it says is the conclusion that the FHA is unconstitutional.  And so, of course, would be every other Civil Rights law passed by Congress that has had its constitutionality grounded by the Supreme Court in cases relying on the Commerce Clause.  (Some Civil Rights laws have their constitutionality grounded in the Civil War Amendments, and so do not rely on the Commerce Clause for their constitutionality).  These laws, quite plainly, were Civil Rights Laws, not regulations of interstate commerce.  (I should note that this view is not based on a "strict constructionist" reading the Commerce Clause.  I'm not sure that anyone on the planet is actually a strict constructionist as caricatured by many commentators, but in any event you reach the same result if you either rely on the plain language of the text or look to the very clear normative idea behind the Commerce Clause, i.e., that the federal government has limited powers).

I'm personally a fan of the FHA and the Civil Rights laws, and this result makes me uncomfortable.  It also makes it impossible to have an intelligent discussion about the scope of the Commerce Clause.  Advocates for reading the Commerce Clause to have actual meaning constantly have to deal with the "but that interpretation will lead to the invalidation of the Civil Rights laws" argument.  On the more-federal-power-is-better side of the debate, the desire to protect the Civil Rights laws forces scholars to engage in herculean feats of analytic gymnastics to explain why their view does not drain the Constitutional text of any meaning whatsoever.

Here's where the idea of superprecedent might come in to save the day.  Why don't advocates for a meaningful reading of the Commerce Clause say, "okay, the cases upholding the Civil Rights laws (including the FHA) are superprecedent.  Can we have an honest debate about the limited scope of federal power now?"  Indeed, the cases upholding the Civil Rights laws seem to be a very settled and uncontroversial part of the Constitutional landscape (at least as far as public reliance goes), and therefore would seem to have a stronger claim to superprecedent status than Roe v. Wade.  (I think, by the way, that because public reliance is an important part of the idea of superprecedent, the scope of superprecedent status has to be somewhat fact specific.  So no arguing for giving superprecedent status to the vacuous Wickard v. Filburn unless you're talking about regulating the sale of wheat).

Beyond promoting honesty in the Commerce Clause debate, giving these cases superprecedent status would force liberal commentators (most of the time I count myself in this category) to confront the differences between substantive due process issues and commerce clause issues.  Personally, I am not willing to accept the proposition that either the federal or state governments could enact a law that, say, limited parents to having only one child.  I'm also not willing to accept the proposition that the federal or state governments can prohibit a grandchild from living with his grandmother, which is why Moore v. East Cleavland is my favorite substantive due process case.  (I hope that Judge Alito is asked about these fact patterns during his confirmation hearings.  If he can't find the rights reflected in these positions in the due process clause, as conservative commentators like to say, maybe he could try looking at the Ninth Amendment or the Privileges and Immunities Clause).  I recognize that these results require a normative interpretation of ambiguous constitutional text that as a practical matter may devolve into Constitutional law that is shaped by the policy preferences of the Justices of the Supreme Court.  Accepting this type of judging in the context of the ambiguous Due Process Clause or the Ninth Amendment, however, does not mean that judges should be able to impose their policy preferences in the face of Constitutional text that, like the Commerce Clause, is far more clear in both its plain and purposive meanings.  Combining superprecedent status for the Civil Rights laws with recognition that some of the Constitution's text isn't so indeterminate as to be devoid of meaning might, among other things, reduce the number of liberal commentators that seem to lose all sense of reason when confronted with a judicial nominee who actually tries to take the text of the Constitution seriously.

Ben Barros

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