Busting Congress' Interstate Commerce Myth

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.

The federal government for years has claimed expansive powers under the authority to regulate commerce – so much that the most innocent private activity can now come under federal control simply because it might have an influence on “interstate commerce.” But did the States really empower Congress through the US Constitution with such an expansive, seemingly unlimited power under the Commerce Clause?

There are two fundamental principles to understand when considering Congress’ power under the Commerce Clause. The first consideration is the fact the power to regulate commerce among the States, with foreign countries, and the Indian Tribes, is identical. The second important consideration to understand is that while the power to regulate commerce is identical across the board, each of the three enumerated entities of the clause has its own unique regulation objective born out of conflicts under the old Articles of Confederation.

The first question most surely crosses anyone’s mind when they come across the language of the clause is what the heck did the framers mean when they said, “to regulate”? Did they imply something like an exclusive power to legislate over all matters of commerce? No.

During the constitutional convention the words "sole and exclusive" before the word "power" was proposed as the language to empower Congress over all matters of commerce -- leaving little doubt over the sweeping power Congress would had been empowered with if indeed such language had been adopted. So obviously then, the majority of the State delegates had something entirely different in mind. And like just about everything given to the federal government, there were limitations imposed, and the regulation of commerce was to be no exception.

The term "regulate" was considered to have restrictive meaning; its meaning was understood to proscribe rules for the free unrestrictive flow of commerce, not an exclusive power to say, directly tax commerce or, take control of every aspect of commerce at its source as would have been the case with the rejected language. Further restriction was placed on the regulation of commerce not only by applying the term “regulate,” but also by combining the regulation of commerce between the States, Indian Tribes and foreign countries together in the same breath.

In an 1827 letter to Joseph Carrington Cabell, Madison explained the phrase this way:

The meaning of the power to regulate commerce is to be sought in the general use of the phrase; in other words, in objects generally understood to be embraced by the power when it was inserted in the Constitution.

Let’s first consider what steps lead to the clause being inserted. Early in 1786 commissioners were appointed by the State of Virginia to meet such commissioners as might be appointed by the other states, for the purpose of:

Considering how far a uniform system in the commercial regulations may be necessary to their common interests, and their permanent harmony; and to report to the several States such an act relative to that object as, when unanimously ratified by them, would enable Congress effectually to provide for the same.

James Madison tells us that the power to regulate commerce was fully understood among the States in a 1832 letter to Professor Davis of the University of Virginia:

So the States had a ‘common interest’ in entrusting Congress with the authority to remedy the evil of one State placing restrictions on another States commercial intercourse. This in return would have the sought effect of a ‘permanent harmony’ among the States in commerce.

Many have wondered how can the regulation of commerce end at State lines when surely this would make such authority of regulating commerce limited. The answer should be obvious by now; no sole, exclusive power was granted over the subject of commerce within the States, i.e., it was limited by design. Recall that while the objectives for each object of the Commerce Clause is different, the power is identical, and therefore, the regulation of commerce must end at the State line just as it must at the legal limits of a foreign country.

President Monroe, told the House of Representatives on May 4, 1822, that the power of the “national government begins where the State governments terminate.”

Well now, generally when you cross a State line you immediately enter into another State jurisdiction, giving Congress no opportunity to exert restrictive control over the navigation of trade under the current theory of Interstate Commerce. And if a State is not laying duties or interring with a neighbors trade as it passes through, Congress’ authority to meddle within the State is nonexistent.

Jefferson said: “To make a thing which may be bought and sold, is not to prescribe regulations for buying and selling. Besides, if this were an exercise of the power of regulating commerce, it would be void, as extending as much to the internal commerce of every state, as to its external.”

Congress’ only mandate under the Commerce Clause is to protect against any attempt by a State to impose restriction or duties on another States commerce. Congress was given no authority to apply its own restrictions or will upon the internal commercial activities of the States no more then they were with a foreign country. If Congress could get away with restricting commerce within State jurisdictions under the clause, would merely be introducing the very evil the clause was intended to remedy.

Congress may still attempt to ‘restrict’ trade through the use of duties placed upon imports from foreign sources via Section 9, but not through the Commerce Clause since the clause only object was to insure the freedom of commercial intercourse, not restriction or usurpation of State jurisdiction.

Charles Pinckney, a man who would know what he is talking about on the subject since he was involved in the framing of the Constitution, sums up the entire issue with this statement in the House of Representatives on February 14, 1820:

Now if we can only convince the courts and Congress what this clear proof means so that silly expansive interpretations may finally come to an end, and the rule of written law prevail.

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