Radiolab Presents: More Perfect – "One Nation, Under Money"
Podcast: Radiolab
Date: January 31, 2018
Hosts: Jad Abumrad & Robert Krulwich

Main Theme

This episode explores the profound and surprising power of the Commerce Clause in the U.S. Constitution. What starts as a seemingly dry legal phrase becomes, through the lens of Supreme Court decisions, the engine driving some of the most transformative and controversial federal policies—ranging from civil rights to economic activity, all the way to modern-day healthcare and gender violence laws.

Key Discussion Points & Insights

The Unassuming Commerce Clause (02:26–06:15)

• Introduction to the Commerce Clause:
  The episode opens with Jad questioning why the "Commerce Clause" keeps cropping up in legal debates.

  • “Why does everybody keep talking about this thing called the commerce clause?” – Jad Abumrad (02:26)
  • Jamie Floyd clarifies:
    • “Well, it’s Article 1, Section 8, Clause 3 of the Constitution... Congress shall have the power to regulate commerce with foreign nations and among the several states and with the Indian tribes.” – Jamie Floyd (02:48)
  • The clause contains only 16 words, yet wields enormous influence.

• Hidden Power Analogy:
  Jad likens the clause to Magneto from X-Men—initially, it appears weak or boring, but in the right context, it's astonishingly powerful:

  • “What initially seemed stupid, stupid and boring becomes extraordinarily powerful once you understand the world in which it is situated.” – Jad Abumrad (05:37)
  • The hosts set up their journey: how these 16 words grew from practical beginnings into a tool of cosmic federal reach.

Currency Chaos and Unification (07:10–09:08)

• Why Regulate Commerce?
  • Historically, every state had its own banks and currency, leading to confusion and inefficiency.
  • James Chen describes how people in different states would mistrust bills from each other:
    • “They would discount the note based on the distance from their own home. They would discount the note based on how it looked, how professionally drawn up it was...” – James Chen (08:14)
  • The push for unified currency and commerce directly motivates the creation and expansion of the Commerce Clause.

Gibbons v. Ogden – The Clause Ignites (09:08–11:23)

• First Major Use:
  • Jamie Floyd explains the 1824 Gibbons v. Ogden case—two steamboat operators fighting, Supreme Court Chief Justice John Marshall steps in.
  • Marshall declares Congress has the power to regulate interstate commerce:
    • “We have a United States of America. We don't have a divided States... there has to be a power to regulate trade between those states and amongst those states when there are disputes. Otherwise it's all going to fall apart.” – Jamie Floyd (10:45)
  • The clause “began to glow, but very faintly,” as government began testing its boundaries in various contexts.

Wickard v. Filburn – The Commerce Clause Goes Supernova (11:23–24:27)

• The Wheat Case:

  • 1941–42: Roscoe Filburn, an Ohio farmer, grows more wheat than allowed under a federal quota. Uses it only for his own animals.
  • Inspector tells Filburn he's in violation—he's fined for his “non-commercial” wheat.
    • “He uses all the wheat to feed his animals.” – Jamie Floyd (18:01)
    • “But big brother does not leave him alone. The inspector says, we’re the government. That's the law. Please uphold it. Pay the fine.” – Jad Abumrad & James Chen (18:30–18:39)
  • Filburn sues, wins at the local level, but loses in the Supreme Court.
    • “Roscoe Filburn growing that extra wheat and not selling it still counts as interstate commerce because having that extra wheat causes him to not buy it on the market.” – Jad Abumrad (20:03)

• Ripple Effect:

  • The Supreme Court says Congress can regulate even “non-behavior”—what you don’t do if it might affect the market collectively.
    • “All the things you don’t do is a much bigger territory than the things you do do. So it’s a massive extension of power.” – Robert Krulwich (24:27)
  • Hosts connect this to modern policies like Obamacare:
    • “This is literally non-behavior.” – Jad Abumrad (21:08)

• Notable Quote:

  • New York Times (1942):
    • “If the farmer who grows feed for consumption on his own farm competes with commerce, would not the housewife who makes herself a dress do so equally? The net of the ruling, in short, seems to be that Congress can regulate every form of economic activity if it so decides.” – (23:27)

Heart of Atlanta Motel & Ollie's Barbecue – Weaponizing the Clause for Civil Rights (29:31–45:05)

• From Markets to Morality:

  • 1960s: The federal government wants to use the Commerce Clause to enforce the Civil Rights Act and end segregation in private businesses.
  • Interview with Ollie McClung Jr., whose family ran Ollie’s Barbecue—a segregated restaurant in Birmingham, Alabama.
    • “If you were white, you could eat inside. If you were black, you couldn’t. I mean, that was the way it worked.” – Ollie McClung Jr. (32:13)

• Legal Challenge:

  • The McClung family argues the government can’t interfere—they’re not involved in “interstate commerce.”
  • The government’s argument: even local restaurants purchase goods from out of state, and racial discrimination affects interstate travel and the economy:
    • “If you deny black people access to restaurants and hotels, you are effectively shutting down interstate travel by them... you are depressing their future interstate commerce.” – James Chen (39:22–40:10)

• Supreme Court Decision and Civil Rights:

  • The Supreme Court upholds using the Commerce Clause to desegregate Ollie's.
    • “We simply served anyone who came in after that, no problem... The law was decided. So that was it.” – Ollie McClung Jr. (41:25–42:00)
  • McClung reflects, even decades later, that he disagrees with using the Commerce Clause but does not support returning to segregation.
    • “Let me put it real, real succinctly. I think what you had in that decision was that... you had basically nine appointees who repealed the 10th Amendment to the Constitution.” – Ollie McClung Jr. (44:09)
  • The hosts press him: Is this philosophical argument really separate from the moral one?

• Notable Insight:

  • “It is legitimately strange that the government had to take such a roundabout ass, backward way to fix this, to fix this grave injustice.” – Jad Abumrad (47:52)
  • Jamie Floyd:
    • “Lawyers in those cases... wanted to win more than they wanted to make a social statement about equal justice... if Congress could shut them down... using those 16 words, I’m okay with that.” (49:02)

The Commerce Clause Run Amok (52:37–53:41)

• Expanding Reach:
  • After the McClung case, almost every federal law, from endangered species to gun control, leans on the Commerce Clause.
    • “They began to wave those 16 words sort of like a magic wand.” – Jad Abumrad (52:50)
  • Government victories become so routine, they sometimes stop showing up to defend laws in court:
    • “There was just no real limit. The only question was whether the government even had to make the argument itself.” – James Chen (52:37–53:26)

Retrenchment: The Limits of Commerce Power (53:41–58:18)

• Violence Against Women Act – Brzonkala v. Morrison:
  • 1990s: Gender-motivated violence law (VAWA) is founded on the Commerce Clause, arguing that such violence, in the aggregate, affects the economy.
  • Supreme Court says no: "Gender motivated crimes of violence are not, in any sense of the phrase, economic activity." (57:54)
  • Tiny rollbacks begin in the expansive reading of federal commerce power.

Reflection: Principles, Power, and Paradoxes (58:27–end)

• Confusion & Contradiction:
  • The absurdity of the doctrine: some reprehensible acts (like excluding black diners) count as "commerce," others (violent assault) do not.
    • “Ollie McClung excluding black people from his dining room. Yeah, it’s a commercial act... But I would like to think that raping Christine would be at least as bad.” – James Chen (58:27)
    • “When the reasoning behind something gets a little rocky, then the soul of things gets called into question. Like, what are you doing, judges?” – Robert Krulwich (59:05)
  • Jad:
    • “That’s what happens when you make everything about money. Things get a little bit rotten at their core.” (59:17)
  • Jamie Floyd's pragmatism:
    • “Lawyers... wanted to win... If Congress could shut them down... using those 16 words, I’m okay with that.” (49:04)

Notable Quotes & Memorable Moments

• On the Commerce Clause’s hidden power:

  • “What initially seemed stupid, stupid and boring becomes extraordinarily powerful.” – Jad Abumrad (05:37)

• On the extension of federal authority:

  • “All the things you don’t do is a much bigger territory than the things you do do. So it’s a massive extension of power.” – Robert Krulwich (24:27)

• On civil rights and legal workarounds:

  • “It is legitimately strange that the government had to take such a roundabout ass, backward way to fix this, to fix this grave injustice.” – Jad Abumrad (47:52)

• On the limit of commerce power:

  • “Gender motivated crimes of violence are not, in any sense of the phrase, economic activity.” – Chief Justice Rehnquist (57:54)

• On philosophical confusion:

  • “Things get a little bit rotten at their core.” – Jad Abumrad (59:17)

Timestamps for Key Segments

| Time | Topic | |---------|----------------------------------------------------------------------------------| | 02:26 | Jad asks: Why does everyone talk about the Commerce Clause? | | 03:46 | The "Magneto" analogy: hidden power of Commerce Clause | | 07:10 | How disparate state currencies led to national regulation | | 09:08 | Gibbons v. Ogden: First major Supreme Court ruling | | 11:23 | Commerce Clause lays dormant after Gibbons: then Wickard v. Filburn | | 12:00 | The farmer’s story introduces dramatic expansion of Commerce Clause | | 18:39 | The moment federal inspector fines Roscoe Filburn | | 20:03 | Supreme Court expands power to “non-activity” | | 29:31 | Introducing Ollie’s Barbecue and the Civil Rights Act challenge | | 34:07 | The legal argument: discrimination as an interstate commerce issue | | 41:25 | After the Supreme Court decision: reaction at Ollie’s | | 44:09 | McClung’s continued disagreement with the ruling and on states’ rights | | 47:52 | Jad: The oddity and moral trade-offs of using the Commerce Clause | | 52:37 | The “wild” expansion of the clause’s application in later decades | | 53:41 | 1990s: Violence Against Women Act, and Supreme Court’s partial reversal | | 59:05 | Reflection on the philosophical cost of turning all issues into commerce |

Flow & Tone

The episode intertwines historical narrative, legal analysis, personal interviews, and witty banter to humanize complex legal concepts. The tone is frequently curious, incredulous, and at times, critical of the strange ways American law intertwines morality, commerce, and power. The hosts maintain an engaging, conversational style that demystifies the law and wrestles openly with its contradictions.

Summary

“One Nation, Under Money” traces the arc of the Commerce Clause from obscure legalese to the backbone of expansive federal authority. Through steamboats, wheat fields, barbecue shacks, and Supreme Court showdowns, the 16-word clause empowers Congress to shape nearly every aspect of American life. The episode candidly concludes that America’s most sacred values and rights have, more often than not, been secured not by direct moral principle, but through the roundabout pathway of commerce regulation—a reality as innovative as it is unsettling.