CONGRESS’ COMMERCE POWER

Congress has the authority under Article I, Section 8 to “regulate commerce with
foreign 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 American
life.

The Supreme Court has gone so far as to uphold federal legislation that prohibited
local, 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 is
written. 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 to
vague and imprecise a proposal that Congress should have the power “moreover to
legislate 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 individual
States 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-six
references 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 “the
supervision 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 described
commerce as “our own domestic traffic that passes from state to state.”

In the New York convention, Melancton Smith stated: “To understand the true
commercial 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 Supreme
Court 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,” he
continued, “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 the
several 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 regard
the 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 existing
Confederacy 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 found
out 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…”