The elevation of the Commerce Clause into a “charter of human rights,” a way of compensating for the Supreme Court’s cramped view of the Reconstruction amendments, has made the judiciary look ridiculous. Everyone knows that guaranteeing the free flow of goods was not the motivation of those who took to the streets to demand passage of the Civil Rights Act or of the members of Congress who voted for that law. Relying on the Fourteenth Amendment, however, would require repudiating a jurisprudence dating back to the 1870s.
