Despite its coy description as “a modest little power,”(1) the Commerce Clause of the Constitution has been transformed into a virtually limitless tool of government intervention into every area of American life. Such an outcome is not only unconstitutional, but was unimaginable to the founders. The clause states that Congress shall have the power “...to regulate commerce with foreign nations, and among the several states, and with the Indian Tribes.”
Some scholars claim that it was added to the Constitution to assure the government’s power to tax imports in order to clear debts from the Revolutionary War.(2) But still others claim that it has evolved into “the single most important source of national power.”(3)
Although the clause describes a power that seems harmless enough, its scope has been exponentially expanded through the interpretation of activist Courts. It has been argued that the intent was to create a free trade zone within the borders of the union. But this limited interpretation provides little authority other than the prevention of trade barriers and tariffs between the states. Avarice and power lust being the dominant characteristics of politicians, the powers assumed under the Commerce Clause have been expanded well beyond their original intent over time.
"During the years that the country operated under the Articles of Confederation, there was no federal authority over commerce between the states. Concerns arose that the actions of individual states concerning trade issues might result in other states taking reprisal steps against neighboring states, and that eventually such circumstances could snowball into open warfare between the states.
Their concerns were based on the study of the history of European trade conflicts and how many such conflicts had devolved into war. Since each state was/is its own sovereign nation, the Founding Fathers believed that the temptations and pressures that led to war between European countries might easily repeat themselves in the New World if there was not a central authority to govern and resolve trade conflicts.
In other words, the states pledged themselves to allow their trade conflicts with each other to be adjudicated and resolved by the federal government.” (4)
In the late 1800’s however, Congress employed the Commerce Clause to take part ownership and impose regulations on the railroad industry. In the late 1930’s “we see the federal courts begin to broaden the government's authority by adopting a new standard in which the US could exercise alleged Constitutional authority in any matter where the issue was "affecting interstate commerce". This was dramatic shift because the government no longer had to limit itself to actual acts of interstate commerce, but could now reach anything that could be shown to have an "effect" upon interstate commerce.” (5)
With this kind of expansion, the Commerce Clause became a powerful mechanism by which virtually any intervention in business was possible. While this expanded power has been employed rather liberally over the last three-quarters of a century, there is no reason to assume that it cannot be once again restrained. Indeed, it must be restrained to curtail abuses of individual liberties and callous interventions into peaceable business within and between the various states.
Thomas Jefferson revealed the intent of the Commerce Clause in a debate over the establishment of a National Bank. Jefferson observed:
"...the power given to Congress by the Constitution does not extend to the internal regulation of the commerce of a State, (that is to say of the commerce between citizen and citizen,) which remain exclusively with its own legislature; but to its external commerce only, that is to say, its commerce with another State, or with foreign nations, or with the Indian tribes." (6)
In Jefferson’s own words, he defines the limits intended in the Commerce Clause: it applies to the regulation of commerce which involves more than one state, a state and a foreign nation or a state and the Indian Tribes. It does not include intrastate commerce.
An equally compelling argument for the limitation of the Commerce Clause is seen in the US Supreme Court case of Hale v. Henkel. This case makes a distinction between how the Commerce Clause apples differently to corporations versus individuals. The court concluded that since a corporation is granted existence by the state for the express purpose of being
“of benefit to the public,” it is subject to all manner of regulation to ensure that result. However, a “Citizen is protected by the Privileges and Immunities clause of the US Constitution as he conducts his private affairs from state-to-state.” When ruling on the right of a citizen to travel from state to state with one’s own property, the California Supreme Court described the right to travel from state to state with one's own property:
"Our conclusion is, that the right of transit through each State, with every species of property known to the Constitution of the United States, and recognized by that paramount law, is secured by that instrument to each citizen, and does not depend upon the uncertain and changeable ground of mere comity." Ex parte Archy (1858) 9 Cal. 147, 163-164. (7)
So, what does all of this mean? In several examples we have examined both the founders’ intent in the applicability of the Commerce Clause to interstate and intrastate commerce. Its entire scope was to to regulate commerce between the various states for the purpose of preventing trade disputes from turning to armed conflict as had happened repeatedly in Europe.
We have also seen that the intent of the founders (as interpreted by the US Supreme Court and the California Supreme Court) specify the jurisdiction of the Commerce Clause to apply predominantly to the conduct of business by corporations as opposed to individual citizens. The author of Issues of Federal Jurisdiction further specifies that “It should be noted that because of the way definitions are tortured in today's statutory law, what a private Citizen does to earn his living is properly referred to as a part of his “private affairs”, and not “business”. (8)
Finally, we must consider that the erroneous expansion of the Commerce Clause by Supreme Court opinions of the past does not invalidate a prudent attempt to restrict its future use. Court opinions are neither infallible nor irreversible. In our mission to rein in the licentious expansion of federal authority, we must be courageous enough to redefine the limits we wish to place on federal jurisdiction.
When we consider the principles which guided the founder’s, and conduct a rational interpretation of the Constitution, we can easily justify limiting the scope of the Commerce Clause to those powers specifically required to resolving disputes arising between states or corporations in different states. We must also circumscribe the powers currently exercised by the federal government that limit the freedom of individual citizens in the peaceable conduct of private business within and between the states.
This realignment will undoubtedly mean the abolition or substantial redefinition of hundreds of federal laws. It will also mean the elimination of federal law enforcement jurisdiction in many cases.
The wording of such a rule would look something like this:
The powers of the Congress regarding the Commerce Clause shall now and in the future, be limited to:
1. The power to equitably and impartially resolve commercial disputes arising between the various states and between local, regional or national corporations.
2. The power to regulate trade between American corporations and foreign governments and corporations for two explicit purposes:
a. Preventing the spread of technologies resulting from publicly funded research whose dispersal are deemed adversely affect essential national defense capabilities;
b. Preventing economic destabilization through unfair trade practices by foreign states or corporations.
3. The power to regulate trade with the Indian Tribes.
Congress shall make no law, or allow any existing law to stand that infringes in any way on the peaceable conduct of commerce between individuals either within or between the various states, or commerce between corporations engaged in commerce within any single state.
Congress must review all laws that are based wholly or in part on liberal interpretations of the Commerce Clause, and repeal or modify their provisions so as to bring them into compliance with this new definition.
Congress shall prepare a report indicating specifically which laws have been repealed or modified; and the constitutional grounds for such action, and make this report available to the public.
1 – Albert S. Abel, The Commerce Clause in the Constitutional Convention and in Contemporary Comment, 25 MINN. L. REV. 432, 448 (1941).
2 – Calvin H. Johnson, The Panda’s Thumb: The Modest and Mercantilist Original Meaning of the Commerce Clause, William and Mary Bill of Rights Journal, Volume 13, pgs 1, 2 (2004)
3 – Robert J. Steamer, Commerce Power, in OXFORD COMPANION TO THE SUPREME COURT OF THE UNITED STATES 167 (Kermit L. Hall ed., 1992).
4, 5 – Issues of Federal Jurisdiction, ORIGINALINTENT.ORG
6, 7, 8 – ORIGINALINTENT.ORG
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