Abstract

This dissertation examines American and Australian commerce clause jurisprudence to determine the importance of a 1995 American commerce clause decision, United States v Lopez. The Supreme Court surprised many scholars by striking down a national commerce clause law for the first time in nearly sixty years. In doing so, the Court seemingly reverted to a method of constitutional interpretation that it abandoned in the 1930's or 1940's. ;The case was not without irony. In the majority, concurring opinions, and dissenting opinions claimed they were following in the footsteps of the great Chief Justice John Marshall. They saw the Lopez majority as reverting to the kind of laissez faire jurisprudence that was unfaithful to Marshall and that marked constitutional interpretation from 1890--1936. This dissertation attempts to sort out the place of Lopez in American commerce clause history. I suggest that John Marshall understood Congress's commerce power as an enumerated or limited power. Therefore, he remained open to the possibility of the Court placing limits on that power. The 1894--1936 Court continued this tradition. In the late 1930's and early 1940's the Court abandoned important elements of the traditional approach. Thus, the Lopez decision was a good first step in restoring the kind of constitutional interpretation that remains faithful to the vision of the founders. ;Finally, I make use of Australian commerce clause jurisprudence to show that it is possible for a Court to proceed in this way in modern times. One of the chief complaints against the Lopez majority was that its mode of constitutional interpretation was out of touch with economic progress. The Australian High Court, which has consistently followed a mode of interpretation resembling that of the pre-1936 US court, provides at least one example of a Court that has continued traditional modes of interpretation in a modern economy