Article 1, Section 8, Clause 3: Commerce Clause

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To regulate is to govern or direct according to a set of rules. It implies bringing order, method, or uniformity to an activity. It is in this sense that we later understand the Second Amendment. However, for purposes of the Commerce Clause, the meaning of regulate is not terribly far from the modern popular understanding.

Commerce can be understood narrowly as trade; the actual exchange of goods. But it can also be understood broadly, such that “to commerce” means “to hold intercourse” in a broad sense. It is unclear how the word was understood by the Framers; possibly the Framers themselves understood it differently. The tendency to view commerce broadly came early, in the first part of the 19th century, such that traffic was understood to come under the Commerce Clause from the earliest decades of the Republic

This Clause is generally understood to break down into three subclauses: the Foreign Commerce Clause, the Interstate Commerce Clause, and the Indian Commerce Clause. Congress is granted broad powers in all three areas.

The Foreign Commerce Clause is probably the least controversial and best delineated subclause of the Commerce Clause. The foreign commerce power extends to the limits of tidewater and covers such things as admiralty law. Thus, no State has power to set up its own admiralty court; that power belongs exclusively to the federal government. Under the Articles of Confederation, each state effectively implemented its own foreign trade policy. The need for uniform regulation of foreign commerce was one of the burning issues that led to the Constitutional Convention.

The Indian Commerce Clause is somewhat more controversial simply because it touches on a generally controversial area of constitutional law, namely, the status of Native American nations. The Framers could not quite make up their minds whether the tribes were full-fledged sovereign nations, to be treated with as any other foreign nation, or were subject in some sense to the sovereignty of the United States. The attitude which long prevailed was articulated in Cherokee Nation vs. Georgia (1831):

Though the Indians are acknowledged to have an unquestionable, and, heretofore, unquestioned right to the lands they occupy, until that right shall be extinguished by a voluntary cession to our government; yet it may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may, more correctly be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases. Meanwhile, they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.

This paternalistic attitude has not quite disappeared, and the precise legal status of tribal governments remains a problematic area of constitutional law into the present century. The courts have held that states have limited ability to regulate commerce with Native American nations within their boundaries, while the federal government retains plenary powers to regulate such commerce.

The most controversial part of the Commerce Clause is doubtless the Interstate Commerce Clause.  It is clear that the Clause authorizes Congress to regulate the actual exchange of goods across state lines. It is reasonably settled that this power does not have to be exercised literally at the state line; the regulations may, in effect, pursue commerce into the interior of a state. It is also reasonably settled that the Commerce Clause gives the federal government jurisdiction over all navigable waters of the United States, which as originally understood were in almost every case waterways that at some point crossed state lines or entered tidewater.

The debate is, first, over whether commerce means trade; the actual exchange of goods. There is evidence both ways from the writings of the Framers. However, the courts have pretty much accepted the view that commerce means any form of economic intercourse between states.

And this leads to a further expansion of the power. If commerce is not restricted to actual exchange of goods, then almost anything can be regarded as a form of commerce. Originally, production within a state was excluded from interstate commerce; that exclusion is all but dead. The ultimate expression of this trend was Wickard v. Filburn, where the Supreme Court ruled that wheat grown and consumed on an individual farm could nonetheless be regulated by Congress, because it ultimately had an effect on the national market for wheat.

This interpretation essentially removed any limiting principle on the Interstate Commerce Clause. Every human act can be argued to have an effect on the overall national economy; therefore, by this interpretation of the Interstate Commerce Clause, Congress can regulate every human activity at every level. The limiting principle offered was that there must be a rational basis for believing that an activity affected interstate commerce, but this is really no limit at all. Such a sweeping regulatory power cannot reasonably be regarded as within the Framer’s vision of Congress’ powers. As Justice Clarence Thomas noted in a dissent:

Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything – and the federal Government is no longer one of limited and enumerated powers.

We cannot disagree.