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The True Meaning of the “Commerce Clause”

on Sep 18 in Articles by

The Commerce Clause is a mere sixteen words long, and it provides that Congress shall have the power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes. {U.S. Constitution,  Article I, Section 8, clause 3}

There is considerable historical evidence that in the early years of the Union, the word “commerce” was understood to encompass trade, and the intercourse, traffic, or exchange of goods; in short, “the activities of buying and selling that come after production and before the goods come to rest.”

In a frequently cited law review article, one Constitutional scholar has painstakingly tallied each appearance of the word “commerce” in Madison’s notes on the Constitutional Convention and in The Federalist Papers, and discovered that in none of the ninety-seven appearances of that term is it ever used to refer unambiguously to activity beyond trade or exchange.

There is no doubt historically that the primary purpose behind the Commerce Clause was to give Congress power to regulate commerce so that it could eliminate the trade restrictions and barriers by and between the states that had existed under the Articles of Confederation. Such obstructions to commerce were destructive to the Union and believed to be precursors to war.

The Supreme Court has explained this rationale, “When victory relieved the Colonies from the pressure for solidarity that war had exerted, a drift toward anarchy and commercial warfare between states began. Each state would legislate according to its estimate of its own interests, the importance of its own products, and the local advantages or disadvantages of its position in a political or commercial view. This came to threaten at once the peace and safety of the Union. The sole purpose for which Virginia initiated the movement which ultimately produced the Constitution was to take into consideration the trade of the United States; to examine the relative situations and trade of the said states; to consider how far a uniform system in their commercial regulation may be necessary to their common interest and their permanent harmony and for that purpose the General Assembly of Virginia in January of 1786 named commissioners and proposed their meeting with those from other states.

The desire of the Forefathers to federalize regulation of foreign and interstate commerce stands in sharp contrast to their jealous preservation of power over their internal affairs. No other federal power was so universally assumed to be necessary, no other state power was so readily relinquished. There was no desire to authorize federal interference with social conditions or legal institutions of the states. Even the Bill of Rights amendments were framed only as a limitation upon the powers of Congress. The states were quite content with their several and diverse controls over most matters but, as Madison has indicated, “want of a general power over Commerce led to an exercise of this power separately, by the States, which not only proved abortive, but engendered rival, conflicting and angry regulations.”

The power under the Commerce Clause was intended to (and must) remain limited to the trade or exchange of goods, and be confined to the task of eliminating trade barriers erected by and between the states. The drafters of the Constitution were aware that they were preparing an instrument for the ages, not one suited only for the exigencies of that particular time.

County Sheriff Brigades of Pennsylvania, c/o P.O. Box 211, Elverson, Pennsylvania 19520

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