congress commerce power

8/8/2019 Congress Commerce Power

http://slidepdf.com/reader/full/congress-commerce-power 1/4

CONGRESS’ COMMERCE POWER

Congress has the authority under Article I, Section 8 to “regulate commerce withforeign nations, and among the several States, and with the Indian tribes.” Ever looking

to expand its power, Congress, with the acquiescence of the Supreme Court, has long ago

seized on this Clause as its authority to regulate pretty much every detail of Americanlife.

The Supreme Court has gone so far as to uphold federal legislation that prohibitedlocal, non-economic activity such as growing wheat or marijuana for personal

consumption under the absurd theory that, since the home-grown product is used instead

of that which is transported across state lines, it has an effect on interstate commerce.

Such a theory, however, transforms the federal government into one with

unlimited powers. But as Chief Justice John Marshall noted in Marbury v. Madison

(1803):

The powers of the legislature are defined, and limited; and that

those limits may not be mistaken, or forgotten, the constitution iswritten. To what purpose are powers limited, and to what purpose

is that limitation committed to writing, if these limits may, at any

time, be passed by those intended to be restrained? The

distinction, between a government with limited and unlimited powers, is abolished, if those limits do not confine the persons on

whom they are imposed.

The delegates at the Constitutional Convention specifically rejected more general

grants of legislative authority to Congress. For example, the delegates rejected as tovague and imprecise a proposal that Congress should have the power “moreover tolegislate in all cases to which the separate states are incompetent; or in which the

harmony of the U.S. may be interrupted by the exercise of individual legislation.”

They similarly rejected a provision that would have allowed the federal

government to “provide, as may become necessary, from time to time, for the well

managing and securing the common property and general interests and welfare of the

United States in such manner as shall not interfere with the Governments of individualStates in matters which respect only their internal police, or for which their individual

authorities may be competent.”

The Commerce Clause, therefore, cannot be understood as an open-ended grant of

authority to Congress but instead must mean something much narrower in scope. A

review of the historical record shows that the Commerce Clause only grants Congress the power to regulate commercial trade between the States. It does not encompass non-

economic activity, nor does it include the power to regulate commerce that takes place

wholly within one state.



The Definition of “Commerce”:

According to the 1785 edition of Samuel Johnson’s Dictionary of the English

Language, “commerce” is defined as “1. Intercourse; exchange of one thing for another;

interchange of any thing; trade; traffick.”

“Manufacturing,” on the other hand, is defined as “1. The practice of making any

piece of workmanship. 2. Anything made by art.” Commerce was also seen as distinct

from “agriculture,” which is defined as “[t]he art of cultivating the ground; tillage;husbandry, as distinct from pasturage.”

This public understanding of the distinct and narrow meaning of commerce was

clearly shared by those who drafted and ratified the Constitution. Of the twenty-sixreferences to interstate commerce in Madison’s notes on the Constitutional Convention,

all of them referred narrowly to “trade” or “exchange” rather than simply gainful activity.

In none of the sixty-three times the word “commerce” was used in The Federalist did it ever refer to anything other than the trade or exchange of goods. In fact, the terms

“commerce,” in both The Federalist and the debates at the state ratifying conventions,was often used distinctly from manufacturing and agricultural activity.

For instance, while stating that commerce was a national issue to be regulated by

the new Congress, Alexander Hamilton made it clear in Federalist 17 that “thesupervision of agriculture and of other concerns of a similar nature, all those things, in

short, which are proper to be provided for by local legislation.”

In the Massachusetts ratifying convention, Thomas Dawes argued that “We have

suffered for want of such authority in the federal head. This will be evident if we take a

short view of our agriculture, commerce, and manufactures.” He specifically describedcommerce as “our own domestic traffic that passes from state to state.”

In the New York convention, Melancton Smith stated: “To understand the truecommercial interests of a country, not only requires just ideas of the general commerce of

the world, but also, and principally, a knowledge of the productions of your country, and

their value, what your soil is capable of producing, the nature of your manufacturers, and

the capacity of the country to increase both.”

In the Philadelphia convention, James Wilson argued: “Suppose we reject this

system of government; what will be the consequence? Let the farmer say, he whose produce remains unasked for; nor can he find a single market for its consumption, though

his fields are blessed with luxuriant abundance. Let the manufacturer, and let the

mechanic, say; they can feel, and tell their feelings. Go along the wharves of Philadelphia, and observe the melancholy silence that reigns…Let the merchants tell you

what is our commerce.”



There were seventy-four references to commerce during the Virginia ratifying

debates, none of which used the term more broadly that to refer to trade. In fact, the

context of at least seventeen of those references were only to, in the parlance of SupremeCourt jurisprudence, “channels and instrumentalities” of commerce (i.e., ports,

navigation, shipping, etc.).

The Supreme Court originally adhered to this public understanding of the term

“commerce” as distinct from manufacturing, agriculture, or mining. In Gibbons v.Ogden (1824), Chief Justice Marshall described “commerce” as commercial intercourse.

Chief Justice Fuller, writing in United States v. E.C. Knight Co. (1895), wrote

that, “Commerce succeeds to manufacture, and is not a part of it…The fact that an article

is manufactured for export to another State does not of itself make it an article of interstate commerce.”

And in Carter v. Carter Coal Co. (1936), Justice Sutherland defined “commerce”

as “the equivalent of the phrase ‘intercourse for the purpose of trade.’” “Mining,” hecontinued, “brings the subject matter of commerce into existence. Commerce disposes of

it.”

The Definition of “Among”:

It should first be noted that the only reason to include the words “among theseveral States” is to refer to interstate commerce. Otherwise, if both interstate and

intrastate commerce were contemplated, they would be included in the term “commerce”

and the rest of the Clause would be superfluous.

Chief Justice Marshall, writing in Gibbons v. Ogden (1824), pointed out that this

“enumeration presupposes something not enumerated; and that something, if we regardthe language or the subject of the sentence, must be the exclusively internal commerce of

a State…The completely internal commerce of a State, then, may be considered as

reserved for the State itself.”

This understanding is reinforced by statements made by those who drafted and

ratified the Constitution. As Hamilton noted in Federalist 23, “The principal purposes to

be answered by union are these…the regulation of commerce with other nations and between the States.”

In Federalist 42, James Madison noted that the “defect of power in the existingConfederacy to regulate the commerce between its several members is in the number of

those which have been clearly pointed out by experience…Were these at liberty to

regulate the trade between State and State, it must be foreseen that ways would be foundout to load the articles of import and export, during the passage through their

jurisdictions, with duties which would fall on the makers of the latter and the consumers

of the former.”



Hamilton, writing in Federalist 11, argued that Congress’ ability under the

Commerce Clause to create an interstate free trade zone would create an “unrestrained

intercourse between the States themselves [that] will advance the trade of each…”

congress commerce power

Documents