Another extremely controversial and constantly abused clause in Article 1, Section 8 is the Commerce Clause. As I mentioned last week, Article 1, Section 8 is the part of the Constitution that lays out what powers Congress has the authority to use. With respect to Commerce, it says Congress has the power:
“To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes…”
At first glance, it doesn’t seem like this clause should be too terribly complicated. The problem is that over the years, the Supreme Court has dramatically expanded the meaning of commerce “among the states” to include any type of activity that directly - or even indirectly - affects interstate commerce.
Using that definition, can you think of anything that wouldn’t affect interstate commerce if you tried hard enough to find a connection?
When it comes to the Commerce Clause, it’s almost like the Supreme Court has created a new game for itself. Have you ever played “The 6 degrees of Kevin Bacon?” Here, it seems like the justices are playing “The 6 degrees of Interstate Commerce” - if you can figure out a way to connect an activity to interstate commerce in six steps or less, Congress can regulate it. Yay!!
I know it seems like I’m exaggerating here (and I am only to the extent that the Supreme Court has never created an actual six-step rule). But in 1942 the Supreme Court actually went so far as to rule that this clause gave Congress the power to regulate a farmer growing wheat on his own private property and then using that same wheat without the product ever leaving his property! You know it took some serious effort to justify that connection.
Clearly the Framers never intended to grant Congress such a ridiculous amount of power with the Commerce Clause.
What was the intended extent of domestic federal power?
As I’ve discussed a few different times (here, here, and here), the Framers made it extremely clear that the federal government was supposed to be limited to only dealing with issues that affected all of the states when they came together as one nation--issues like national defense and foreign diplomacy.
Given how clear the Framers were about that, if the Commerce Clause was put into the Constitution in order to allow Congress to get involved in local commerce we would expect to see some very specific language clarifying that that was their intention. But there is absolutely nothing in the text to indicate that - even though the federal government was limited to only dealing with national issues - this clause was an exception to that.
So it’s more than a bit of a stretch to believe that the phrase “commerce among the states” was included as a way to allow Congress to get involved in virtually all commerce throughout the country.
What problems were the Framers trying to fix by including this clause in the Constitution?
By looking at what problem the Framers were trying to solve by including the Commerce Clause in the Constitution, we can get a great idea of what they expected this clause to do.
In this case, the problem they were trying to solve is pretty straightforward.
Before the Constitution was ratified, a lot of states were putting up trade barriers against each other. Just as one example, Virginia put a tax on tobacco that entered that state from North Carolina. Not only was that kind of thing dragging down our economy, it was creating a lot of anger and distrust among the states.
Congress’s power to regulate trade among the states was created to put a stop to those kinds of trade barriers.
Oliver Ellsworth put it this way:
“The power of regulating trade between the States will protect them agst. each other.”
James Madison was on the exact same page:
“A very material object of this power [regulating interstate commerce] was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter.”
The purpose of this clause was to prevent states from obstructing the free flow of products from one state to another. That’s it.
In fact, the domestic aspect of the Commerce Clause was so limited it wasn’t even intended to be a "positive" grant of power. In other words, Congress couldn’t proactively make rules for interstate commerce—it could only act to prevent the states from putting up barriers to trade among the states.
I realize that is dramatically different from how most people today view the Commerce Clause. So don’t take it from me, take it from James Madison. He laid this out specifically in a letter to Joseph Cabell:
“[I]t is very certain that it [the Commerce Clause] grew out of the abuse of the power by the importing States, in taxing the non-importing; and was intended as a negative & preventive provision agst. injustice among the States themselves; rather than as a power to be used for the positive purposes of the General Govt. in which alone however the remedial power could be lodged.”
Believe it or not, the Commerce Clause was not intended to grant our federal government the power to tell you what you can’t eat or how much your toilet can flush. It was simply intended to give Congress the authority to ensure that products were able to move freely and easily from one state to the next.
It’s stunning just how detached the current application of the Commerce Clause is from the actual text. This is just another illustration of the fact that in our country today it doesn’t matter what the Constitution says, it only matters what our politicians want it to say.
As long as we allow that to happen, the only thing limiting our politicians is what they believe they can get away with.
Chad Kent is an author and speaker with a unique style that makes the Constitution simple and fun. Listen to Chad every Saturday during The Chris Salcedo Show on TheBlaze Radio, visit his web site at www.ChadKentSpeaks.com, and like his Facebook page at www.facebook.com/theconstitutionguy.
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