“The Congress shall have Power … To regulate Commerce … among the several States.”
~ U. S. Constitution, Art. I, Sec. 8, Cl. 3
This short provision has been so bastardized as to form the basis for a large part of our ravenous federal government. Indeed, most congressional activities are based on the so-called “commerce power.” If one takes only a brief time to examine the purpose and meaning of the Commerce Clause, it becomes clear that we have strayed far from the intentions of our Founders, and that we would do well to return to them.
“Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it. Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the nonimporting, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged. And it will be safer to leave the power with this key to it, than to extend to it all the qualities and incidental means belonging to the power over foreign commerce, as is unavoidable.” ~ James Madison (Letter to Joseph C. Cabell, 13 Feb 1829)
And in Federalist No. 42, Madison referred to the Commerce Clause as “a superintending authority over the reciprocal trade of confederated States.” That is, a power to “provide for the harmony and proper intercourse among the States.” In paragraph 8, Madison explained the need for the Commerce Clause:
The defect of power in the existing Confederacy to regulate the commerce between its several members, is in the number of those which have been clearly pointed out by experience. To the proofs and remarks which former papers have brought into view on this subject, it may be added that without this supplemental provision, the great and essential power of regulating foreign commerce would have been incomplete and ineffectual. A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquillity. To those who do not view the question through the medium of passion or of interest, the desire of the commercial States to collect, in any form, an indirect revenue from their uncommercial neighbors, must appear not less impolitic than it is unfair; since it would stimulate the injured party, by resentment as well as interest, to resort to less convenient channels for their foreign trade. But the mild voice of reason, pleading the cause of an enlarged and permanent interest, is but too often drowned, before public bodies as well as individuals, by the clamors of an impatient avidity for immediate and immoderate gain.
Thus, the Commerce Clause was intended to grant Congress the power to craft an international trade policy, to regulate trade among the States, and to prevent interstate war.
Recall that Art. I Sec. 10 states: “No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws….” This is a clear example of Congress’s commerce power, i.e. the power to grant or withhold consent for a State to impose a tax on imports or exports.
Pres. Thomas Jefferson, having reduced the national debt and increased revenues, suggested uses for future revenues: “… to the great purposes of the public education, roads, rivers, canals, and such other objects of public improvement as it may be thought proper to add to the constitutional enumeration of federal powers.” Sixth Annual Message, Dec 2, 1806. It is clear that Thomas Jefferson thought the federal government did not have those powers under the Constitution as written.
As his last official act as President, Madison vetoed a bill that provided federal funding for building roads and canals throughout the United States. The President found no expressed congressional power to fund roads and canals in the Constitution, and he believed that the federal government should not encroach upon matters delegated to state governments. In doing so, President Madison said:
“The power to regulate commerce among the several States” can not include a power to construct roads and canals, and to improve the navigation of water courses in order to facilitate, promote, and secure such a commerce without a latitude of construction departing from the ordinary import of the terms strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress.
Now, if Congress has not the authority to fund roads and canals throughout the nation, can anyone seriously contend that Congress has the authority to regulate activities that “affect commerce?” The answer surely is no. Roads and canals clearly affect commerce, yet Madison believed that the infrastructure was better left to the States. Here again, if the nation thinks that the infrastructure is best left to the federal government, let them amend the Constitution, not torture the language in its present form.
Justice Joseph Story (1811-1845), appointed to the Supreme Court by Pres. Madison, in A Familiar Exposition of The Constitution of the United States, provided several examples of Congress’s reach under its power to regulate interstate commerce:
- the Coasting Trades and Fisheries (if connected with the commerce or intercourse with any other state or foreign nation)
- regulation and government of Seamen aboard American ships
- Conferring privileges on ships built and owned in the U.S. in domestic and foreign trade
- Quarantine laws
- Pilotage laws
- Sea wrecks
- Navigation of vessels carrying passengers
- Navigation of vessels engaged in traffic and general coasting business
- Embargoes on domestic and foreign voyages
- Construction of lighthouses, placing of buoys, and beacons
- Removal of obstructions to navigation in all bodies of water
- Establishment of securities to navigation against the inroads of the ocean
- Designation of ports of entry and delivery for foreign commerce
Justice Story understood the regulation of interstate commerce to enable Congress to prescribe rules to govern commerce, defined as the buying and selling of commodities, navigation utilized for this purpose, and intercourse with foreign countries. How far we have come.
Commerce = Trade
“Commerce” as used in the Commerce Clause means trade. That is, the buying and selling of goods and their movement in interstate commerce. The Commerce Clause does not grant Congress the power to regulate manufacturing, labor, agriculture, mining, or industry, although regulating trade may have indirect effects on these activities. Yet Congress and the U.S. Supreme Court have expanded the Commerce Clause to enable federal control over these activities. That the Supreme Court has permitted Congress to go so far beyond its original scope is a sad but accurate view that permeates Supreme Court jurisprudence over the last 75 years. Politicians and judges alike have shown a remarkable weakness of character in failing to adhere to these rather simple Constitutional guidelines.
According to Professor Randy E. Barnett of Georgetown Law School (who has conducted a great deal of research on the history of the Commerce Clause):
“Commerce” means the trade or exchange of goods (including the means of transporting them); “among the several States” means between persons of one state and another; and the term “To regulate” means “to make regular”—that is, to specify how an activity may be transacted—when applied to domestic commerce, but also includes the power to make “prohibitory regulations” when applied to foreign trade. In sum, Congress has power to specify rules to govern the manner by which people may exchange or trade goods from one state to another, to remove obstructions to domestic trade erected by states, and to both regulate and restrict the flow of goods to and from other nations (and the Indian tribes) for the purpose of promoting the domestic economy and foreign trade.
Professor Barnett’s excellent review of this topic can be found here.
The purpose of the Commerce Clause was to remove barriers to interstate commerce, to maximize the free flow of goods domestically and abroad. Recall that it was intended as a “negative,” which to me means that Congress can prohibit State actions that impair interstate trade. That Congress only rarely utilized the Commerce power in the first 100 years of our nation demonstrates that the Commerce Clause was very limited in scope, and that the States rarely acted such that Congress had to intervene to referee trade among them.
Where did we get off track?
When did we go from regulating commerce to regulating activities that affect commerce? It started very early in our jurisprudence.
In Gibbons v. Ogden (1824), Justice John Marshall defined commerce as “intercourse,” an unnecessary word that carried approximately the same meaning at that time, but opened the door for liberals and progressives to broaden the reach of the Commerce Clause. According to Marshall, Congress could regulate all “commerce which concerns more States than one.” However, “the completely internal commerce of a State … may be considered as reserved for the State itself.”
Cooley v. Board of Wardens, 53 U.S. 299 (1852): The United States Supreme Court held that a Pennsylvania law requiring all ships entering or leaving Philadelphia to hire a local pilot did not violate the Commerce Clause. Those who did not comply with the law had been required to pay a fee. “It is the opinion of a majority of the court that the mere grant to Congress of the power to regulate commerce, did not deprive the States of power to regulate pilots, and that although Congress had legislated on this subject, its legislation manifests an intention, with a single exception, not to regulate this subject, but to leave its regulation to the several states.” Justice Benjamin Curtis authored the opinion for the majority.
“Real or substantial relation”/”Real or substantial connection”: In Second Employers’ Liability Cases, 223 U.S. 1 (1912), the Supreme Court held that Congress may regulate the relations of common carriers and their employees while both are engaged in interstate commerce. Justice Van Devanter (appointed by Pres. William Howard Taft) wrote that some propositions regarding the Commerce Clause “have come to be so firmly settled as no longer to be open to dispute.” It went on to hold that safety regulations were permissible if the employer-employee relations have a “real or substantial connection with the interstate commerce in which the carriers and their employees are engaged.” There is no discussion of the history of the Commerce Clause and the intent of the founders in adopting it. That the U.S. Supreme Court in this way changed our constitution (without a convention), and that the changes were (as of 1912) “no longer open to dispute” is disquieting. Yet no one is outraged.
From 1895 (U.S. v. E.C. Knight Co., 156 U.S. 1) thru 1936 (Carter v. Carter Coal Co., 298 U.S. 238), the Supreme Court narrowly (and in my opinion correctly) defined commerce as “trade and exchange.” The Court distinguished production from commerce. (Congress may regulate interstate commerce; it may not regulate production). Production is manufacturing, agriculture, mining, industry, etc. Production brings the subject matter of commerce into existence; commerce disposes of it. “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.” This was the prevailing view of the Commerce Clause until 1937, when the Supreme Court began yielding to the whims of Congress under President Roosevelt’s ”New Deal.”
In NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937), the U.S. Supreme Court began giving deference to Congressional authority, holding that Congress may regulate activity that “substantially affects” interstate commerce. This despite clear guidance that affairs strictly internal within a State were off limits to the Federal government. Notice that we went from regulating commerce to regulating activities that affect commerce; a subtle but major difference. This is how the U.S. Supreme Court “got around” the Commerce Clause in permitting Pres. Roosevelt’s New Deal measures, which were intended to fix the country’s economic problems in the 30′s.
NLRB v. Jones and Laughlin Steel was authored by Chief Justice Charles E. Hughes, who was joined by Justices Brandeis, Stone, Roberts, and Cardozo. Justices McReynolds, Van Devanter, Sutherland, and Butler dissented.
Consider this: Art. I, §8 gives Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” So if Congress, under the Commerce Clause, has the authority to regulate activities that “affect commerce,” would anyone seriously contend that Congress has the authority to regulate activities within a foreign country that “affect commerce”? Surely not. So should the activities within a State be off limits to the federal government.
Let’s identify those who initiated and allowed the practice of exerting authority beyond the intended scope of the Commerce Power: Those who passed such measures (under the Presidency of Franklin Roosevelt), and the Supreme Court Justices who allowed it (Charles Hughes, Louis Brandeis, Harlan Stone, Owen Roberts, and Benjamin Cardozo).
Granted, the electorate has the responsibility of electing leaders who uphold the Constitution. But to do so assumes that the electorate and the elected have read and understand the Constitution, which in my mind is very much in doubt. And we unfortunately cannot rely on our educators to instruct on the principle of limited government; today our educators are mostly government employees.
Wickard v. Filburn
In Wickard v. Filburn, 317 U.S. 111 (1942), Roscoe Filburn owned a small farm in Dayton, Ohio, on which he grew wheat to feed his chickens. During the Great Depression, wheat export declined dramatically, causing a glut of wheat in the U.S. In response to this, Congress passed the Agricultural Adjustment Act of 1938, where the Secretary of Agriculture could limit the amount of a commodity (such as wheat) a farmer could grow in order to increase the price of the commodity. Filburn was growing more wheat than the Secretary permitted, and was ordered to destroy his crops and pay a fine, even though he was growing the excess wheat for his own use, and had no intention of selling it.
Now, having studied the Commerce Clause and the history leading up to it, any rational person would say that Congress cannot force Mr. Filburn to curtail his wheat crop under the Commerce Clause. This would be a frank regulation of agriculture (i.e. not commerce), which was specifically off limits to the federal government in the early years of our nation. Yet a unanimous Supreme Court (Harlan Stone; Owen Roberts; Hugo Black; Stanley Reed; Felix Frankfurter; William Douglas; Frank Murphy; James Byrnes; Robert Jackson) held otherwise. The rationale was: Since many farmers in theory could consume their own wheat instead of buying it at market, the home-grown wheat “competes with wheat in commerce.” Therefore, the theory goes, Congress can regulate activities that have a “substantial economic effect on interstate commerce.” Thus:
But even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect.’
How far we have come. Recall, the Commerce Clause was intended as a negative and preventive provision against injustice among the States themselves, and was designed to prohibit a State from taxing the goods from another State. Under Wickard v. Filburn, Congress can prohibit an Ohio farmer from planting wheat for his own consumption. That is a far cry from specifying rules to govern the manner by which people may exchange or trade goods from one state to another.
Contemporary Cases (Lopez, Morrison, Gonzales)
Once you understand the purpose of the Commerce Clause, you will recognize that it is a very limited power. Yet since 1937 the U.S. Supreme Court has never found that Congress exceeded its Commerce Clause power, with two exceptions: U.S. v. Lopez, 514 U.S. 549 (1995); and U.S. v. Morrison, 529 U.S. 598 (2000). In Lopez, Congress had made it a federal crime to carry a firearm in a school zone. (Now remember, Congress has no police power under the Constitution, and the Commerce Clause only permits Congress to specify rules to govern the manner by which people may exchange or trade goods from one state to another, and to remove obstructions to domestic trade erected by States. Justices Renquist, O’Connor, Scalia, Kennedy, and Thomas agreed that the possession of a gun in schools does not “substantially affect” commerce. The best discussion of the Commerce Clause comes not from the majority decision but from the concurring opinion of Justice Clarence Thomas. Justice Thomas reviewed the history of the Commerce Clause and rightly denounced the “substantial effects” test.
U.S. v. Morrison dealt with the Violence Against Women Act of 1994. The Act stated that all persons within the U.S. “shall have the right to be free from crimes of violence motivated by gender.” A woman who was a victim of a gender-motivated crime of violence could bring a civil action against the perpetrator in federal court. In Morrison, a female student at Virginia Tech claimed to have been raped by two members of the football team, and sued them under the Act. The defendants argued (among other defenses) that the Act was beyond the Commerce Power.
By the same 5-4 split as in Lopez, the Court held that the Act was beyond the Commerce Power. Generally, held the majority, economic activities can be regulated; non-economic activities cannot. Since gender-motivated violent crimes are not “economic activities,” they cannot be regulated under the Commerce Power. Again, the Supreme Court keeps conjuring new “tests’ that permit liberals to circumvent the limited purpose of the Commerce Clause, which they predictably do.
If you think that Wickard v. Filburn is antiquated law, think again. In Gonzales v. Raich, 545 U.S. 1 (2005), the Court upheld the Controlled Substances Act (CSA), which prohibited the manufacture, distribution, or possession of a Schedule 1 drug (i.e. recreational drugs). In 1996, California legalized marijuana for medicinal purposes, so the plaintiff grew her own marijuana to treat her medical condition. The Court (Stevens, Souter, Breyer, Ginsburg, Kennedy, Scalia), relying on Wickard v. Filburn (discussed above), upheld Congress’s authority to regulate this activity. The key holding is that “Congress can regulate purely intrastate activity that is not itself commercial, in that it is not produced for sale, if Congress believes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.” This would be an example of Congress regulating production, not commerce; rather clearly unconstitutional. Yet the Supreme Court practically ignored the purpose of the Commerce Clause and 150 years of our Constitutional history. This is an example of conduct that is rightly under the jurisdiction of the States.
The Commerce Clause gives Congress the power to regulate commerce itself. Congress has power to impose rules governing the exchange or trade of goods from one state to another, to remove obstructions to domestic trade erected by States, and to both regulate and restrict the flow of goods to and from other nations for the purpose of promoting the domestic economy and foreign trade. That’s it; nothing more. Recently (since the Roosevelt presidency), our leaders and the U.S. Supreme Court have misinterpreted the intent of the Founders of our Constitution.
If the States give Congress the power to regulate any activities that “affect commerce,” we essentially give them the power to pass any law whatsoever, a proposition (by Alexander Hamilton) that was never even considered at the Constitutional Convention, and was resoundingly rejected in favor of enumerated powers. We have a government of very limited powers by design. Our Founding Fathers thought it best to keep internal matters under the authority of the State governments.
Are services (as distiguished from goods) included within the ambit of interstate commerce? At the time of the Convention, most services were rendered within a state and not “among states.” One notable exception would be transportation services, which seemingly are directly involved in interstate commerce, and therefore within the reach of the Commerce Clause. However, it seems to me that had the drafters intended to include other services within the concept of commerce, they would have said so. The Framers therefore probably intended the Commerce Clause to reach only the trade or exchange of goods in interstate commerce.
In interpreting the Constitution, we must in all circumstances err on the side of limiting the federal government’s reach, and in favor of the rights of States to govern their internal affairs. Why? To repeat and emphasize, the general concept of our government under the Constitution is that the Federal Government is concerned with external (i.e. foreign) affairs, and the States are concerned with internal affairs. The U.S. Supreme Court has done just the opposite: It errs on the side of permitting federal authority over internal affairs, literally changing the language of the Constitution (from regulating commerce to regulating activities that affect commerce). The Constitution does not empower Congress to regulate activities that “affect commerce;” it empowers Congress only to regulate commerce itself. Had the Founders intended that Congress could regulate activities that affect commerce, they simply would have said so.
Let us not forget: The Constitution can be amended. The Founding Fathers made provision for changing the Constitution if we as a people so desire. So instead of torturing the plain language of the Constitution, things would go much better if we simply propose changes, discuss them openly, then vote. Much of today’s consternation is caused by Congress’s torturing the language and meaning of the Constitution, with the blessing of the U.S. Supreme Court.T. Jeffrey Beausay The Donahey Law Firm 495 S. High Street, Suite 300 Columbus, Ohio 43215 614.224.8166 (Columbus Office) firstname.lastname@example.org