Arkes: The Commerce Clause Revisited

In the forthcoming January issue of First Things , I have an analysis of the oral arguments the Supreme Court heard on November 8 in Gonzales v. Carhart , the case testing the federal ban on partial-birth abortion. But perhaps it is also worth mentioning, here on the First Things website, the "dog that wasn’t barking"¯which is to say, the Commerce Clause and the awkward position of Clarence Thomas ( a topic I examined back in the October issue).

The bill on partial-birth abortion, as a federal bill, was cast in the familiar terms for extending the reach of federal authority to private businesses and clinics: The law was directed to "any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus." But over the past ten years, the conservatives on the Court have sought a mild scaling down of the reach of the Commerce Clause.

So mild, in fact, that it has elicited a deep opposition from Clarence Thomas, who has sought to return to an older discipline and restraint on the Commerce Clause. During the litigation on partial-birth abortion, none of the litigants raised the issue of the Commerce Clause, and in the oral argument it was raised only in the most oblique way. Clearly, the issue matters for only one of the judges, but for him it cannot be ducked: Justice Thomas will come under immense pressure to show that he respects his own jural doctrine on the Commerce Clause even when it prevents him from sustaining a law he would devoutly wish to sustain. With that sense of the problem, some of us collaborated on a brief for the Court, in which we sought to support Thomas’ reading of the Commerce Clause but offer, to the justice, an alternative ground for upholding the law. (The brief is available online here .)

Whether or not Thomas finds that argument persuasive, I think he has already indicated the way he is likely to solve his problem here. Just last year, in Gonzales v. Raich , the Court dealt with a law in California that permitted the use of marijuana for medical purposes. One of the plaintiffs, Diane Monson, cultivated her own marijuana¯much in the way that a farmer, in a famous case, once set aside wheat on his farm for his own family. But with the novel sweep of the Commerce Clause in the New Deal, the Court held that the farmer was bound by the law. The current Court, holding to that modern reading, was willing to cover Diane Monson in the same way, with the same sweep. Thomas would have been willing to jettison that reading of the Commerce Clause and permit California to offer permission to Diane Monson to grow marijuana for her own medical use.

But then, several months later, the liberal judges were willing to have the federal government recede in its claim to exclusive authority in the regulation of drugs when it came to assisted suicide. The state of Oregon sought to permit doctors to administer drugs to facilitate the death of a patient. In that earlier case from California, Thomas had been willing to see the federal authority over drugs scaled back "in a manner consistent with the principles of federalism and our constitutional structure." But now, he said, that is "water over the dam." Why should he hold to his reading of the Commerce Clause when that reading summoned no support yet from his other colleagues? Would he become then just a fifth vote to be tacked on by the left in order to sustain a policy of assisted suicide?

In other words, he would not play the role of the useful idiot: He would not be on call to be recruited by the left to do its work. And in this case, that work would be to sink the bill on partial-birth abortion.

Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College. His most recent book is Natural Rights and the Right to Choose .