Myth #6: The Commerce Clause allows the federal government to regulate all commerce between the states however it seems fit

This is the Sixth Myth in the series: 25 Myths of the U.S. Constitution.

Note: These articles later were updated and combined into my first book: 25 Myths of the United States Constitution.

By Douglas V. Gibbs

Article I, Section 8 of the U.S. Constitution is the list of enumerated powers for the legislative branch of the federal government. Since, according to Article I, Section 1, the legislative branch is granted with all legislative powers, and the true power of the federal government is its ability to make law, Article I, Section 8 is the list of authorities for the federal government. In Article I, Section 8, Clause 3, the Constitution gives the U.S. Congress the power to "regulate Commerce with foreign Nations, and among the several states. . ." Current assumptions dictate that anything that crosses state lines is then subject to federal jurisdiction via the Commerce Clause.

In 1942, the Supreme Court unconstitutionally granted the federal government more power, stating in the opinion regarding Wickard v. Filburn, that the commerce clause covers intrastate economic activity that “affects” interstate commerce. In other words, by goods not crossing state lines, it affects interstate commerce by reducing the number of goods that could have crossed state lines.

More specifically, Wickard grew wheat for his own family's consumption, but the U.S. Supreme Court reasoned that the wheat being consumed locally would keep wheat that was once sold across state lines from being sold in interstate commerce. By withdrawing that wheat from the interstate market, output and prices in interstate commerce were affected, therefore giving the federal government the authority to regulate it.

Not only did the court not have the authority to decide what authorities the federal government has, but the court's opinion also interpreted the Commerce Clause in a manner that was never intended.

The U.S. Constitution was written in a manner designed to limit the powers of the federal government. The Supreme Court is a part of the federal government. By interpreting the Constitution in cases like Wickard v. Filburn, or determining if a law is constitutional, the federal government (through the Supreme Court of the United States) is literally deciding for itself what its own authorities are. One must ask, is the federal government deciding its own powers in line with the limiting principles originally intended by the Founding Fathers?

When it comes to the Commerce Clause, the main bone of contention between those who desire a more centralized governmental system, and those that support a limited one based on the original intent of the Founding Fathers, is the word "regulate." According to the statists (or collectivists, if you must), "regulate" means any control of any kind. Regulate, to these folks, include restricting, excessively taxing, and inspecting. However, originalists claim that the word "regulate" in the Commerce Clause means nothing of the sort. In fact, based on the debates during the Constitutional Convention, the actual intent was for the federal government to act as a mediator in order to ensure commerce flows more easily. A term used by these folks, often, is that "regulate" means "to make regular." The idea for that definition, aside from the Constitutional Convention debates, comes from evidence provided by the 1828 Webster's Dictionary, which lists one of the definitions of regulate to mean: "To put in good order."

Even in today's language, the word regulate means more than just to restrict, or control. For example, if you turn on the hose in your front yard, you are regulating the flow. Turning the flow on full blast to allow the water to flow more freely is just as much regulation as turning the flow off, or restricting it to a trickle.

To look at this issue in an historic context, we realize that the problem during the early years of the existence of this nation was that the States were quarreling over trade across state lines. They were charging high tariffs against each other, and engaging in practices that was literally bringing interstate commerce to a standstill. While the founders were debating the problem of commerce between the states, they came to the conclusion that the federal government needed to act as a mediator to ensure that the flow of commerce flowed more regularly. Therefore, in the commerce clause, they gave the authority to the new federal government to open the faucet full blast, to make regular the flow of commerce between the states, to put in good order the flow of interstate commerce.

To take this a step further, we must understand the word "commerce." Commerce is the trading of goods and services. This trading of goods and service not only happens between countries, among the several states, and with Indian Tribes, as the Commerce Clause suggests, but among individuals.

Websters’s 1828 Dictionary defines commerce as an interchange or mutual change of goods, wares, productions, or property of any kind, between nations or individuals, either by barter, or by purchase and sale; trade; traffic. Commerce is foreign or inland. Foreign commerce is the trade which one nation carries on with another; inland commerce, or inland trade, is the trade in the exchange of commodities between citizens of the same nation or state. Active commerce.

Intercourse between individuals; interchange of work, business, civilities or amusements; mutual dealings in common life.

Of the twenty-six references to interstate commerce in Madison’s notes on the Constitutional Convention, all of them refer to “trade” or “exchange” rather than simply commercial activity. Individual commercial activity, it would seem, would not be included in the need for regulating commerce.

The word "commerce" is used sixty-three times in The Federalist Papers, and in those writings the word was used in connection to trade or the exchange of goods.

By recognizing the use of these terms during that time period, it becomes clear that the granting of the authority to regulate trade between the several states to the United States Congress was only meant to extend to interstate trade and not local economic activity such as manufacturing, agriculture, and mining. Under the Articles of Confederation, the States were suffering from tariffs and other trade barriers that they imposed on each other, and the purpose of the commerce power in the new Constitution was to provide Congress with the authority to create a free trade zone among the States, or to mediate between the States in order to allow trade to flow more freely.

Therefore, the use of the Commerce Clause by the federal government in the manner we see in today's political atmosphere is unconstitutional. The federal government should not get involved in interstate commerce unless something happens to restrict the flow. Then, and only then, should the federal government get involved, and in those cases the involvement must be limited to mediation, and attempting to get commerce to flow more freely.

-- Political Pistachio Conservative News and Commentary

1828 Noah Webster Dictionary

Madison's Notes in the Federal Convention

Wickard v. Filburn 1942