This week, we continue looking at constitutional clauses often misconstrued to give the government more power than intended.
Two weeks ago, we started with the general welfare clause, and last week we followed up with the necessary and proper clause. This week, we will take up probably the clause most often used to justify federal action – the commerce clause.
The Congress shall have Power…to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.
The misapplication of the commerce clause stems from a redefinition of the word “commerce.” The Supreme Court has expanded the meaning of commerce to the point that in today’s legal parlance, it essentially means “all economic activity.” As Justice Clarence Thomas pointed out in his dissent in the medical marijuana case Raich v. Gonzales, under the courts’ expansive definition of commerce power, the federal government has “no meaningful limits.”
To properly understand the Constitution, one must understand what words and phrases meant to the framers and ratifiers. Using modern definitions can sometimes change the meaning of the document, an unacceptable interpretive methodology. James Madison warned against this.
I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense!
So, what did “commerce mean in the founding era? Simply put, commerce pertains to trade, or the act of exchanging goods. Commerce power also extended to regulation of the transportation system, shipping, and interstate and international waterways. But the Commerce Clause was never intended to give the federal government the power to regulate manufacturing, agriculture, labor laws, health care or a host of other activities claimed by progressives. Constitutional scholar and author of The Original Constitution: What it Actually Meant and Said Robert Natelson examined the legal constitutional meaning of commerce. He scoured 17th and 18th century case law, legal works and legal dictionaries, as well as lay usage of the word. His research showed commerce was almost exclusively used in connection with trade – not the broader range of economic activities the Supreme Court uses. In a scholarly paper titled The Legal Meaning of “Commerce” in the Commerce Clause, Natelson writes:
Commerce benefited agriculture and manufacture by circulating their products, but it did not include agriculture or manufacture. Jurists compared commerce to an enormous circulatory system, carrying articles throughout the entire Body Politic, as the blood in the human body carries oxygen and nourishment. Thus, like the American Founders, English lawyers and judges understood the tight interrelationship between commerce and other parts of the economy, yet they were careful to distinguish them conceptually.
To read more about the founding era meaning of commerce, click HERE.
The construction of the commerce clause makes it clear that Congress has the same commerce regulating power over interstate commerce (trade across the borders of a state) as it does over foreign trade. That means the federal government can theoretically ban trade of a given product across state lines. But the purpose behind delegating Congress the power to regulate interstate commerce was not to restrict trade, but to keep it free and open. The framers wanted the federal government to possess the power to prevent states from inhibiting trade through levying tariffs on neighbors. For instance, to have the power to stop Tennessee from slapping a fee on bourbon imported from Kentucky. It was a power intended to protect free and robust trade. The commerce clause also gave the federal government the authority to pursue a unified trade policy with other nations, as opposed to each state enforcing its own policy. James Madison explained the intent of the commerce clause in a letter to J. C. Cabell dated February 13, 1825.
I always foresaw difficulties might be started in relation to the interstate commerce power…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 it grew out of the abuse of the power of the importing states in taxing the non-importing, and was intended as a negative and preventative provision against injustice amongst 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 & incidental means belonging to the power over foreign commerce, as is unavoidable, according to the reasoning I see applied to the case.
The federal government was never intended to micromanage the economy through wage laws, labor laws, agricultural regulations, industrial regulations, healthcare laws and the like. Those powers were left to the states and the people. When the federal government regulates the economy and it does not directly relate to trade, it is usurping power and violating the Constitution.
Next week we will look at war powers.