Enumerated Express Powers: Lake Elsinore Constitution Class

Instructor: Douglas V. Gibbs

Constitution Class
C.H.O.B., 119 W. Peck Street, Lake Elsinore
6:00 pm to 7:00 pm

We begin tonight with the Commerce Clause.  Contrary to popular opinion, the Commerce Clause was not originally intended to allow the federal government to control, tax, or subsidize anything and everything the crosses State lines.

James Madison's notes on the Federal Constitution gives us clues regarding the original intent of the Commerce Clause.  The word "commerce," in its nearly one hundred appearances in Madison's notes, and the Federalist Papers, was used only to mean "trade" and "exchange."  In the various debates during the State ratification conventions the same definition is applied to "commerce," specifically trade or exchange after production, and prior to when the product comes to rest.

The condition of interstate commerce at the time of the writing of the United States Constitution leaves no doubt that the primary purpose behind the Commerce Clause was to give Congress power to 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 desire of the Founding Fathers was to find a way to encourage interstate trade without federalizing interstate trade.  The States, holding original authority over all issues, and creating the federal government for the purpose of protecting and preserving the union by allowing the federal government to handle external issues, were intent upon preserving the power they had over their internal affairs.  So, the word "regulate" was carefully chosen to explain Congress's power over interstate trade.

Among the definitions of the word regulate, one must seek its root to locate what the Founding Fathers intended the word to mean.  The word comes from Latin's "regula," or "rule."  "Regula" is the same Latin word that our word "regular" comes from.  From the point of view of the Founding Fathers, "regulate" meant "to make regular."  To make something "regular" would be to "put it in good order."  In today's dictionary, "to put in good order" is the fourth definition listed at dictionary.com.

In Webster's 1828 Dictionary, "to put in good order" is the second definition listed, right behind "to adjust by rule."  To control or restrict, in 1828, is listed as the least used definition.

To regulate interstate commerce, then, according to the original intent, is not a call for the federal government to control or restrict commerce, but to take actions to ensure it flows. . . which means it is the task of the federal government through legislation to act as a mediator, to resolve conflicts between the States regarding interstate commerce so that it may flow regularly.  Otherwise, the federal government is not to interfere.  Congress's only role regarding commerce is to make sure it flows by acting as a referree between the States.

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