Understanding the Commerce Clause

By Douglas V. Gibbs

The Commerce Clause is found in Article I, Section 8 of the United States Constitution. The clause indicates that Congress shall have the power to regulate commerce with foreign nations, and among the several States, and with the Indian Tribes.

The word "regulate" is the key basis for disagreement, often times. The word "regulate" in the 1828 Noah Webster's Dictionary is defined as:

1. To adjust by rule, method or established mode; as, to regulate weights and measures; to regulate the assize of bread; to regulate our moral conduct by the laws of God and of society; to regulate our manners by the customary forms.
2. To put in good order; as, to regulate the disordered state of a nation or its finances.
3. To subject to rules or restrictions; as, to regulate trade; to regulate diet.

You will notice that the definition to restrict is the final definition.

When one regulates with the intention to put something in good order, the term used was "To make regular."

The States, during the early years of this nation, fought over commerce, charging tariffs against each other, and they limited the movement of goods across State lines. Under the Articles of Confederation the government had no authority to be involved in commerce in any way, shape, or form. During the debate in 1787 over the creation of a new government through the writing of a new constitution, this problem was addressed, and it was determined that Congress should have the power to "regulate" commerce. It was understood the value of the federal government taking action to negate the commercial advantages of other countries and to take steps for pushing American commerce was paramount. But what about the States? What about the squabbling between the States?

In order to pay the Revolutionary War debts, the United States were* in desperate need of revenue, and so first the tariffs needed to be nationalized. The power to tax for the purpose of militarily defending the union of States was one of the main purposes of the creation of the Constitution. The delegates at the Constitutional Convention also recognized that removing tariffs between the States would assist in quelling the disagreements between them.

Another purpose of the Commerce Clause was to guard against mercantilist schemes, which were prevalent during that time period. Favoritism by the British Government towards particular merchants was one of many sparks that sent America towards revolution. Mercantilism also discouraged imports, playing a protectionist role that ultimately stifled trade. By eliminating tariffs between the States, and nationalizing tariffs so that they were applied to international trade, the early Americans actually kept some elements of mercantilism in play. Free trade was a concept that had not yet taken hold.

Even with the elimination of tariffs between the States, the tendency of the States to undercut each other remained a concern that needed to be further addressed. The anti-federalists feared an over intrusive government, and a need to restrict the trade between the States was not a pressing issue.  However, a method to open up trade between the States to ensure commerce flowed was necessary, when one considered the sibling-like fighting among the States. The federal role agreed upon to put in good order the trade between the States was for the federal government to act as a mediator between the States whenever trade was obstructed.

This is not to say that the federal government has no authority to restrict, or prohibit, trade between the States, but the definition used by the progressives is broader than originally intended, as expected. Impeding or prohibiting the trade of certain items was to be used in a limited manner, and any regulatory actions by the federal government that would limit trade or control trade between the States required an agreement to do so by the States through their appointed representatives in the United States Senate**. Without the States approving of such an action in the Senate, the federal government's ability to regulate in a manner similar to the definition of the Commerce Clause held by today's liberal progressives was quashed.

* Note in Paragraph 7 I wrote "the United States were in desperate need of revenue," - this was not a typo. The term "United States" had a few meanings, based on the context of the conversation. "The United States" could be a reference to the new federal government, a reference to the union of States in a nationalistic manner, or as a reference to the union of individual states that are united. The latter was the more common usage of the term, and it is the latter I use in that sentence, making the "United States" a plural, which makes the word "were" appropriate.

** The voice of the States in the federal government through their appointed representatives in the United States Senate was eliminated in 1913 with the ratification of the 17th Amendment. As a result, the dynamics of the federal government was damaged, and the continued rise of progressivism was eminent. One step in halting the increased stranglehold progressives have on our American System as originally intended would be to repeal the 17th Amendment. Repealing the 17th Amendment can only be achieved by Congressional Amendment.  Repealing the 17th Amendment would return to the State legislatures their voice in the legislative branch of the federal government, so that they may properly act as a check against the House of Representatives, a check against the executive branch, and so that the advise and consent powers may be properly applied.

-- Political Pistachio Conservative News and Commentary

Note: This article is a reference article that will be applied to my upcoming article on the Supreme Court's ruling on Obamacare.