Commerce Clause: An Originalist Viewpoint

By  Douglas V. Gibbs

The Commerce Clause has been grossly misrepresented throughout history by those that would seek an ever-expansive federal government.  The Commerce Clause is mentioned in Madison's Veto, along with his explanation regarding "general Welfare."  But, the real importance regarding the Commerce Clause goes back to the definitions of the words used in the clause, and the context of the time period.

During the early years of the new country, the States acted as bitter rivals when it came to commerce, therefore, causing the movement of commerce between the States to be severely limited.  Based on the discussion during the convention on August 29, 1787, during that time period the New England States were calling for strong regulations regarding commerce, the Southern States were calling for no federal regulatory powers over interstate commerce, and the remaining States carried various opinions that may be considered to be quite moderate in relation to the other opinions.  It was agreed that no State should be able to charge any taxes regarding import or export to or with other States or with other countries (Article I, Section 10 of the U.S. Constitution), and thanks to George Mason's efforts on September 15th in Convention, the Commerce Clause was not written with the intent to give the federal government a general controlling power over interstate commerce.

Generally, the discussions regarding commerce were geared more towards foreign commerce, and the intent to limit the import of slaves (which was ultimately achieved with Article I, Section 9, which enabled Congress to outlaw the Atlantic Slave Trade in 1808).  However, the concern over commerce between the States, when the topic arose, was more about better enabling the flow of commerce between the States, not placing restrictions.  The rivalry between the States regarding trade was already creating a restrictive environment, when it came to commerce between the States, so the need was for the new federal government to have a tool to better enable a free flow of commerce between the States.

James Madison, in a letter to Joseph C. Cabell on September 18, 1828 explains that the Commerce Clause was not designed to restrict trade, but to encourage it.  To encourage trade between the States, the federal government's involvement must be as limited as possible.  The clause was to also encourage manufacturing, while restricting the federal government from showing preferential treatment towards any manufacturer.  While in British Common Law, regulating trade means to tax it, in his letter Madison specifically explains, "a power to regulate trade does not involve a power to tax it."  Commerce was also specifically defined as trade of goods or products between people or business entities, and did not include the manufacturing of products.

Furthermore, the definition of the word "regulate" is also an important factor in determining what was originally intended.  During the decades following the Constitution, those that defended the original intent of the Commerce Clause claimed that "regulate" means "to make regular."  Though that is essentially correct, we cannot determine that is the definition without a second piece of evidence.

--- When we consult today's modern dictionary (in this case, I grabbed the following from Dictionary.com):

verb (used with object), regulated, regulating.
1. to control or direct by a rule, principle, method, etc.:
to regulate household expenses.
2. to adjust to some standard or requirement, as amount, degree, etc.:
to regulate the temperature.
3. to adjust so as to ensure accuracy of operation:
to regulate a watch.
4. to put in good order:
to regulate the digestion.

--- Later down the page, we see a similar list of definitions for the use of the word in medical terminology:

regulate reg·u·late (rěg'yə-lāt')
v. reg·u·lat·ed , reg·u·lat·ing , reg·u·lates

To control or direct according to rule, principle, or law.

To adjust to a particular specification or requirement.

To adjust a mechanism for accurate and proper functioning.

To put or maintain in order.

--- According to Dictionary.com's modern British definitions, we see the following:

verb (transitive)
1. to adjust (the amount of heat, sound, etc, of something) as required;control
2. to adjust (an instrument or appliance) so that it operates correctly
3. to bring into conformity with a rule, principle, or usage

--- Though I don't have available for you a dictionary from 1787, we do have, online, the 1828 Webster's Dictionary, which should help us prove our point.  According to the 1828 Webster's dictionary, the definitions regarding the word "regulate" are as follows:

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.

Notice the alteration of positions.  While rules or restrictions (to control by rule or law) were at the top of the list in today's definitions, nearly two hundred years ago that definition was at the bottom of the list, or was the "least used."  The definition "to put in good order," which is last in today's list of definitions, was above the "rules and restrictions" definition, making "to put in good order" the more widely used definition between the two.

Taking this information into the context of the Commerce Clause, this is what we must deduce from it.  First, to put in good order the disordered condition of the United States at the time of the writing of the U.S. Constitution was more important than allowing the federal government to use rules or restrictions that may limit trade.  In the third definition it states "rules or restrictions."  The word "or" between the two suggests that the meaning of "rules" is different from the meaning of "restrictions."  And, as was common with the writing standards of that time, the more important of the two was placed first in the sentence, in this case being the word "rules."  So, what was most important to the framers of the Constitution was ensuring that commerce in a general sense was "in good order," since the current state of commerce both between the States, and with foreign countries, was in a disordered condition.  To enable commerce to be in good order, that would mean that the federal government's intrusion into interstate commerce would need to be as limited as possible, only allowing Congress to make legislation when necessary to put interstate commerce in good order when an occurrence arises that may inhibit such trade between the States.  These Congressional "rules" would be for the purpose of encouraging trade, not restricting it.  This is not to say restrictions can never be established, but again the idea was to encourage trade, and protect American interests.  With that in mind, it would then be reasonable to assume that "restrictive regulation" would be pointed more at foreign trade, than it would be at interstate trade.

During the Framer's August 29, 1787 discussion during the Federal Convention, Mr. Clymer explained that the "diversity of commercial interests, or necessity creates difficulties, which ought not to be increased by unnecessary restrictions."

Roger Sherman agreed, adding "the diversity was of itself a security."

So, the problem was two-fold.  How could the federal government prevent the States from wrecking the union with their own petty regulations regarding trade that were designed to only promote local prosperity at the expense of their neighbors, while not allowing the federal government to intrude in such a way that their regulations may become restrictive and tyrannical, ultimately placing at risk State Sovereignty?

The necessity that the emphasis must be directed at enabling the free flow of commerce, rather than restrictive regulation, was apparent.  The federal government needed to be allowed to disallow the States from creating a hostile environment when it came to interstate commerce, while at the same time to not be allowed to impose its own restrictive rules that may interfere with interstate commerce.

Thomas Jefferson was in France during the 1787 convention that produced the United States Constitution.  James Madison was not only an integral part of the writing of the Constitution, but is often called the "Father of the Constitution" since much of the document's framework was created by Mr. Madison.  During the convention, Jefferson was in constant contact with Madison through written correspondence.  This daily correspondence between the two men created two realities.  One, that Thomas Jefferson was greatly involved in the writing of the document; and two, James Madison's opinions altered during that time period to reflect a more Jeffersonian spark than he had previously portrayed.  With that in mind, and keeping in mind the context of the Commerce Clause, we must take into account what Jefferson had to say about federal intrusion into State issues.

Jefferson said, "Our country is too large to have all its affairs directed by a single government. Public servants at such a distance and from under the eye of their constituents . . . will invite the public agents to corruption, plunder, and waste. . . . What an augmentation of the field for jobbing, speculating, plundering, office-building, and office-hunting would be produced by an assumption of all the state powers into the hands of the federal government!" -- Thomas Jefferson, The Writings of Thomas Jefferson, Andrew A. Lipscomb, editor (Washington, D. C.: The Thomas Jefferson Memorial Association, 1903), Vol. X, pp. 167-168, Thomas Jefferson to Gideon Granger, August 13, 1800.

Jefferson also said, regarding localism, "The states can best govern our home concerns, and the [federal] government our foreign ones." -- Thomas Jefferson, The Writings of Thomas Jefferson, Andrew A. Lipscomb, editor (Washington, D. C.: The Thomas Jefferson Memorial Association, 1904), Vol. XV, pp. 450, Thomas Jefferson to Judge William Johnson, June 12, 1823.

Does this sound like a man that would allow for the federal government to dictate to the States what they can and can't do regarding commerce in a restrictive way?

In Federalist Paper #45, James Madison explains, "The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State."

Notice that in the list of federal authorities, Mr. Madison specifically indicates "foreign commerce," but not "interstate commerce."  Madison also used the words "external" when relating to federal authorities, and "internal order" among the list of authorities of the States.  Would interstate commerce be considered "internal", or "external"?

As one studies the U.S. Constitution, it becomes apparent that the States, and the people, are the authors of the contract, and the federal government is an entity created by that social contract.  The States, prior to the writing of the Constitution, held original authority on all governmental powers, but gave some of those powers to the federal government so that it may properly function in the manner it was designed to function.  By simply reading the Preamble, and the first seven articles of the U.S. Constitution, we recognize that the federal government was established by the States, through the Constitution, to preserve, promote, and protect the union of States.  Therefore, as the authors of the Constitution, would it seem reasonable to grant to the federal government the power to restrict such an important thing as the movement of goods between the States?

Ultimately, as per the definitions we have already established, the primary motive of the part of the Commerce Clause regarding interstate commerce was to "put in good order" trade between the States.  Independently, the States were imposing their own restrictions that were harming interstate commerce.  But, to hand over all of the power to the federal government, giving the central government the power to restrict interstate commerce if it so decided to, was not in the best interest of enabling a free flow of commerce between the States, either.

So, how can the federal government put in good order interstate commerce without being allowed to control or restrict the flow of commerce between the States?

To better enable us to understand the original meaning of the word "regulate" in the case of the Commerce Clause, we can take a look at how the word was used in the 2nd Amendment. The amendment begins with the words, "A well-regulated militia." A "well-regulated" militia is not a prohibited militia, or one that is restricted, but one that is in good order.  A militia operates in good order when it is well-drilled, or given proper rules that enable it to function as originally intended.  The phrase, "well-regulated militia" does not include the power for Congress to forbid or prohibit any functionality of the militia.  In the same way, the Commerce Clause's use of the word "regulate" was not intended to give Congress the power to forbid or prohibit any kind of interstate commerce, but to allow Congress the authority to better enable the flow of commerce between the States.

The power to regulate may sometimes include the power to prohibit, but one can see that whenever Congress would be required to place prohibitions on commerce, it would be more likely in the case of commerce with foreign nations, than between the several States.  Sometimes, in the course of foreign commerce, prohibitions are necessary to put commercial relations between countries in good order (in the sense of protecting domestic interests such as in the case of protecting some domestic markets from foreign competition).

In short, the Commerce Clause's original intent was to promote the domestic economy and foreign trade by encouraging a free flow of commerce, while removing any obstacles that may stem that flow.

What that means is that the United States Congress's job regarding interstate commerce is to pass laws that encourages the flow of commerce, and enables the federal government to act as a mediator or referee when disputes between the States arise and threaten to restrict the flow of commerce.

-- Political Pistachio Conservative News and Commentary