Justice George Sutherland and Commerce-Clause Federalism Before the New Deal

The jurisprudence of Justice George Sutherland illustrates how the U.S. Supreme Court justified commerce-clause federalism between the end of the Civil War and the ascendancy of the New Deal. Sutherland presented a constitutional and political defense of federalism grounded in American natural-rights theory. This defense presents arguments that federalism's skeptics and defenders have not considered sufficiently. Skeptics tend to argue that is impossible to maintain a federalist constitutional arrangement; Sutherland's defense shows how to do so. Federalism's supporters tend to defend the commerce clause on negative grounds, that it limits government power by forcing the states to compete with each other and Congress to compete with them all. Sutherland, however, drew on a tradition of political theory which stressed that commerce-clause federalism offered positive benefits by keeping the federal government lean and mean. It barred Congress from regulating on subjects about which it was less informed and competent than state legislators and regulators. By focusing the federal government on truly national objects like interstate trade, it left most regulation where citizens could see it-locally. According to this tradition, the commerce clause played a critical role in making the national government energetic and effective, and it also ordered local political processes so as to make citizens self-reliant and fit for republican self-government. Copyright 2004, Oxford University Press.