The commercial Constitution

Continetti is guest-blogging for The Post.

Ramesh Ponnuru has a fascinating column attacking the view that the Supreme Court is pro-business:

Look beyond the statistics, and a lot of the court’s pro-business decisions seem like holding actions. The Wal-Mart lawsuit would have classed roughly 1.5 million female employees as plaintiffs on the theory that by giving its store managers discretion over personnel, the company had exposed all of them to potential discrimination. Letting the case go forward — and thus letting similar cases begin — would have created a powerful incentive for firms to centralize their decisions even at the cost of efficiency. In contrast, none of the pro-business decisions have shut down established lines of litigation.

In the course of the piece, Ponnuru reiterates the idea of the "commercial Constitution":

The Constitution erects all kinds of barriers to interference with commerce. States can’t levy “duties of tonnage.” They can’t impair contractual obligations. They have to get congressional approval before they can join with other states in any regulatory compact. For much of its history, the enforcement of this “commercial constitution” was the main part of the Supreme Court’s business. It was John Marshall’s court, for example, that ruled in 1824 that the power of Congress to regulate commerce among the states implies that the federal courts can stop state governments from attempting to regulate it.

Despite a rush to self-identify with the label “constitutional conservatism,” many Republicans and conservatives — myself included — seem unsure what, exactly, constitutional conservatism means. Ponnuru’s article is a start in the right direction.

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