Douglass H. Bartley
Lawyer and former judge*
Précis: ●Using constitutional text and Federalist explanations, this article shows: ●The commerce power was designed only to regulate foreign trade and trade among the states ●The power does not give congress any authority to regulate manufacturing, mining, agriculture, or any other activity that precedes trade ● Instead, the power was designed mainly to prevent states from imposing discriminatory taxes on goods coming in from other states or foreign nations ● How the supreme court transformed the commerce clause into a dragnet power that today is said to justify federal regulation of wheat grown for home consumption, janitors in state office buildings, and all sorts of other activities that are not themselves trade but that only affect trade.
“Congress are authorized to defend the nation. Ships are necessary for defence; copper is necessary for ships; mines are necessary for copper; a company necessary to work the mines; and who can doubt the reasoning who has ever played at—‘This is the house that Jack Built.’”—Thomas Jefferson
“It is difficult to name anything that falls outside legislative power—neither a loaf of bread nor an x-ray.” Judge Frank Easterbrook
“Congress shall have power . . . to regulate commerce . . . among the several states”. Those eleven words have had the most profound and totally unanticipated impact of any in all the Constitution save possibly the general welfare clause.
No federal power, again with the possible exception of the “general welfare power”, has been more abused than the interstate commerce power. The power has been used to justify all sorts of federal legislative invasions of individual rights and intrusions into the jurisdictional spheres of states.
As interpreted by the U.S. Supreme Court, the power has become a dragnet, a magnetic force used to draw all sorts of private economic activity into a jurisdictional black hole, without regard to whether the activity is truly interstate or really local and thus beyond the power’s reach.
Typically, the judicial justification for the expansion of the commerce power has been based on the “rationale” that any local or intrastate activity which affects interstate commerce itself becomes interstate commerce and therefore subject to federal regulatory jurisdiction. As Jefferson wrote in 1808 about a proposal to federally incorporate a copper mining company, anyone can play this game:
“Congress are authorized to defend the nation. Ships are necessary for defence; copper is necessary for ships; mines are necessary for copper; a company necessary to work the mines; and who can doubt the reasoning who has ever played at—‘This is the House that Jack Built’”.
Marshaling that sort of House-that-Jack-Built “reasoning”, the U.S. Supreme Court has made real Madison’s and Jefferson’s worst nightmares about an overbearing federal government, holding manufacturing, mining, and agriculture, all to be interstate commerce. Indeed, to state the above is to grossly understate the case, for in the court’s view, interstate commerce is intergalactic in scope, commodious enough to embrace wheat grown at home for home consumption, building maintenance services, professional football, professional boxing, theatrical productions, news gathering and transmission, transportation of females for noncommercial sexual purposes, and for prostitution, transportation of plural wives by Mormons, transportation of five quarts of whiskey for personal consumption, kidnapping, stolen autos, natural gas production, night watchmen, standby auxiliary firefighters, windowashers, architectural employees, loan-sharkers, red caps, motels, drug stores, auto dealers, fuel oil dealers, two-unit apartment buildings, restaurants, and even snack bars.
The best example of commerce clause abuse is Wickard v. Filburn, a New-Deal era case. Under the same Agricultural Adjustment Act, the secretary of agriculture set quotas for wheat production. Filburn grew small amounts of wheat on his farm for his livestock, seed, and home consumption. His allotment was 222 bushels, but he grew 461 and was fined $117. He sued to restrain the collection of the penalty on the grounds that the act exceeded congress’s commerce power.
The normally-sensible Justice Robert Jackson took leave of his senses in the opinion, upholding the penalty with this reasoning:
“One of the primary purposes of the Act . . . was to increase the market price of wheat, and to that end to limit the volume thereof that could affect the market. It can hardly be denied that a factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions. This may arise because being in marketable condition such wheat overhangs the market and, if induced by rising prices, tends to flow into the market and check price increases. But if we assume that it is never marketed, it supplies the needs of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce.”
With the logic of Justice Jackson, in what one wag called the “ethereal flying bakery” case, there can be nothing that escapes federal commerce power and regulation. The janitor cleaning an office building is in interstate commerce, because the Pine Sol he uses crosses state lines. As I sit at my computer typing this sentence, I too have entered the stream of commerce, for the coal that creates the electricity that powers the computer comes from outside Minnesota.
When my son works in our garage on his go-cart, he too is engaged in interstate commerce, for the aluminum in the socket wrench he uses was probably mined in Arkansas. My wife’s cooking is in interstate commerce, because if she wasn’t doing the cooking, we would probably go to MacDonald’s. By staying home instead, we are reducing MacDonald’s sales, and “overhanging” the fast food market, as Justice Jackson might say.
The pre-Wickard view of the meaning and reach of interstate commerce was sensible. In United States v. E.C. Knight, which struck down the government’s attempt to set aside a sugar company’s acquisition of four competing refineries, the U.S. Supreme Court took a far different view of the stretch of commerce power, quite rightly saying, “Commerce succeeds to manufacture, and is not part of it.” “It would be “far-reaching” to allow Congress to act “whenever interstate or international commerce may be ultimately affected.”
The supreme court of E.C. Knight was right; the supreme court of Wickard wrong. As Professor Raoul Berger has written, the court has used “the commerce clause as a shuttlecock that has been the toy of shifting majorities on the bench.” Wickard, along with many other cases, plunged another dagger into the doctrine of enumerated power, already bleeding profusely from its near mortal wounds in United States v. Butler and Helvering v. Davis, both of which turned the Constitution’s General Welfare Clause into an abracadabra for expanding federal power.
In this section, however, rather than poking fun at the supreme court’s excesses, we shall confine ourselves to deciding what the framers meant when they gave congress power to “regulate commerce with foreign nations, among the several states, and with the Indian tribes”, as the clause reads in its entirety. The excesses are legion—scores of supreme court cases and no doubt thousands of lower federal and other cases—that have either said or assumed that “commerce” is anything and everything that “affects commerce”.
It is true that the commerce power language, at least by modern standards, is not a model of pervasive specificity. But although the meaning of “commerce” may not be instantly discernible to the modern reader, we can easily discern that it can’t possibly mean what the supreme court says.
For example, “commerce” can’t possibly mean manufacturing; and it can’t mean agriculture, mining, or retailing either. As Professor Richard Epstein has written:
“One should assume that the word commerce . . . bears the same meaning with respect to each of its objects. * * * What possible sense does it make as a matter of ordinary English to say that Congress can regulate ‘manufacturing with foreign nations, or with Indian tribes’ or for that matter “manufacturing among the several states”.
In short, it’s impossible to maintain that congress can regulate “manufacturing with foreign nations” or “mining with Indian tribes”. “Commerce” cannot be taken as the equivalent of “manufacturing” or “mining”—without making hash out of the clause.
What then does “commerce” mean? In the language of the day, “commerce” had a distinctly limited meaning. For example, Hamilton in Federalist № 11 defined “commerce” as “our intercourse with foreign countries [and] with each other” which he in turn equated with “trade”:
“An unrestrained intercourse between the states themselves will advance the trade of each by an interchange of their respective productions, not only for the supply of reciprocal wants at home, but for exportation to foreign markets. The veins of commerce in every part will be replenished, and will require additional motion and vigor from a free circulation of the commodities of every part.”
Madison too equated commerce with “trade“: “[T]he universal expectation of the people that the regulation of trade should be submitted to the general government in such a form as would render it an immediate source of general revenue”. And in № 53:
“How can foreign trade be properly regulated by uniform laws without some acquaintance with the commerce, the ports, the usages, and the regulations of the different States? How can the trade between the different States be duly regulated without some knowledge of their relative situations in these and other respects?”
Hamilton’s and Madison’s definition of “commerce” as “trade” squares with the common usage of the day. Samuel Johnson’s 1765 Dictionary defines commerce as “[i]ntercourse, exchange of one thing for another, interchange of anything; trade; traffick.”
Unlike the gobbledygook we get if we equate “commerce” with “manufacturing” or “agriculture”, if we assume that commerce means “trade“, the commerce clause makes perfect sense throughout: “Congress shall have power . . . to regulate trade with foreign nations, trade among the several states, and trade with Indian tribes.”
It doesn’t take sustained analysis to show that the supreme court, has in “construing” the commerce clause, committed what the late Senator Sam Ervin called “judicial verbicide”—the constitutional text shows that. But for those who like to have proof piled on proof, there are further reasons why commerce can’t be given the open-ended, “House-that-Jack-Built”, meaning imparted by that court.
For one thing, when one is trying to construe an ambiguous statement of law, whether it be in a statute or in the Constitution, one must consider the evil the provision was intended to remedy, a common-law principle which dates back to at least 1584 in Heydon’s Case, and endorsed by Chief Justice Marshall in Gibbons v. Ogden. As Blackstone said of the rule:
“There are three points to be considered in the construction of all remedial statutes: the old law, the mischief, and the remedy, that is, how the common law stood at the making of the act; what the mischief was, for which the common law did not provide; and what remedy the parliament hath provided to cure this mischief. And it is the business of the judges so to construe the act as to suppress the mischief and advance the remedy.”
If we apply the “what-was-the-evil-to-be-remedied” rule, we find the answer once again in the Federalist. In № 43, Madison identified the evil against which the interstate commerce part of the commerce clause was directed:
“A very material object of this power was the relief of the states which import and export through other states from the improper contributions levied upon them by the latter. Were these at liberty to regulate the trade between state and state, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former.”
To the same effect, Hamilton said:
“The interfering and unneighborly regulations of some states, contrary to the true spirit of the Union, have in different instances, given just cause of umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became . . . injurious impediments to the intercourse between the different parts of the Confederacy. The commerce of the German empire is in continual trammels from the multiplicity of the duties which the several princes and states exact upon the merchandises passing through their territories . . . .”
So the evil the interstate commerce clause was intended to remedy was the mess prevailing during the Confederacy where states imposed duties on goods passing through—”internecine exactions”, as Professor Berger put it. How then can it be that the commerce power can be applied to regulate farmers growing wheat for home consumption, janitors doing their jobs in office buildings, or snack bars?
It takes a fevered imagination to use the power as justification for that sort of regulation; or, for that matter, to justify any federal regulation over manufacturing, agriculture, mining, or retailing, or almost any other private economic activity, when the only purpose of the power was to remove obstacles to interstate traffic and thereby to promote “an unrestrained intercourse between the states”.
The conclusion is underscored by the fact that the interstate commerce power was thought more an adjunct to the foreign commerce power than a freestanding power. Madison and Hamilton viewed the interstate commerce component of the power primarily as ancillary to the foreign commerce power. As Madison said in Federalist № 42, the domestic or interstate commerce power was a “supplemental provision [without which] the great and essential power of regulating foreign commerce would have been incomplete and ineffectual.”
Hamilton also regarded the interstate commerce power as primarily “supplemental” to the foreign commerce power. He repeatedly emphasized the importance of it in terms of dealing with foreign nations carrying on trade with the United States:
“The want of [the commerce power] has already operated as a bar to the formation of beneficial treaties with foreign powers, and has given occasions of dissatisfaction between the states. No nation acquainted with the nature of our political association would be unwise enough to enter into stipulations with the United States, by which they conceded privileges of any importance to them, while they were apprised that the engagements on the part of the Union might at any moment be violated by its members.”
Hamilton also regarded the commerce power, in toto, as a means of acquiring bargaining power in our dealings with foreign nations. He spoke of the importance of an active commerce, by which he meant a flourishing foreign trade which could only be accomplished with a central control:
“If we continue united, we may counteract a policy so unfriendly to our prosperity in a variety of ways. By prohibitory regulations, extending, at the same time throughout the states, we may oblige foreign countries to bid against each other, for the privileges of our markets. * * * Suppose, for instance, we had a government in America, capable of excluding Great Britain . . . from all our ports; what would be the probable operation of this step upon her politics? Would it not enable us to negotiate, with the fairest prospect of success, for commercial privileges of the most valuable and extensive kind, in the dominions of that kingdom? * * * [Such a prohibition] would produce a relaxation in [Great Britain’s] present system and would let us into the enjoyment of [her markets].”
The irony of the supremacy of the interstate component is great, for those who drafted the Constitution never imagined the predominance the interstate commerce power has gained. Far from being “supplemental”, the interstate commerce power has become the premier instrument in the aggrandizement of federal power. Yet it couldn’t be more clear that the interstate commerce power was never intended to become the federal jurisdictional dragnet it today is.
Madison wrote in № 45 that the commerce power was uncontroversial:
“If the new Constitution be examined with accuracy and candour, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS. The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained.”
Could Madison today observe the size of the federal commerce behemoth without suffering immediate coronary arrest, he would undoubtedly be soon be led away to the nearest loony bin. The hyperbole is only slight, for one need only consider Madison’s (and Hamilton’s) statements in the Federalist concerning the limited scope of federal jurisdiction.
For example, Madison in Federalist № 14, said: “[The general government’s] jurisdiction is limited to certain enumerated objects, which concern all the members of the republic”. Hamilton in № 17: “The . . . supervision of agriculture and of other concerns of a similar nature . . . can never be desirable cares of a general jurisdiction.” (So much for Wickard.) Madison in № 39: “[The federal government’s] jurisdiction extends to certain enumerated objects only, and leaves to the several states a residuary and an inviolable sovereignty over all other objects.”
In № 40: “In the new government . . . the general powers are limited; and that the States, in all enumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction.” Madison again in № 45:
“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.”
Madison in № 46: “[A]ll those alarms which have been sounded, of a meditated and consequential annihilation of the State governments, must, on the most favorable interpretation, be ascribed to the chimerical fears of the authors of them.” Likewise, Hamilton in № 31:
“The moment we launch into conjectures about the usurpations of the federal government, we get into an unfathomable abyss, and fairly put ourselves out of the reach of all reasoning. Imagination may range at pleasure till it gets bewildered amidst the labyrinths of an enchanted castle, and knows not on which side to turn to extricate itself from the perplexities into which it has so rashly adventured. Whatever may be the limits or modifications of the powers of the Union, it is easy to imagine an endless train of possible dangers; and by indulging an excess of jealousy and timidity, we may bring ourselves to a state of absolute skepticism and irresolution. * * * [A]ll observations founded upon the danger of usurpation ought to be referred to the composition and structure of the government, not to the nature or extent of its powers. The state governments, by their original constitutions, are invested with complete sovereignty.”
As Professor Berger has observed, an overbearing federal government was the greatest fear of the anti-Federalists:
“Convinced that the distant British government had oppressed them, the colonists were little minded to put their trust in a remote federal government. It will be recalled that Pierce Butler and James Lincoln feared to trust their fortunes to a government a thousand miles distant. Most Americans had a ‘deeply rooted distrust of central power,’ and as Benjamin Wright noted, the anitfederalists ‘distrusted the new system because it would be remote and not so immediately subject to control.’ Then there was the ‘great objection’, recognized by Madison, that ‘the Genl. Govt. could not extend its care to all the minute objects which fall within the cognizance of the local jurisdictions.’”
It’s true that there have been a few faint lights that suggest some members of the supreme court at least recognize some limits on the otherwise broad swath of the commerce clause.
In United States v. Lopez a bare majority of the court struck down, as beyond the federal commerce power, a federal statute that prohibited the possession of guns within 500 feet of a school. And in United States v. Morrison, another 5-4 decision, the court held portions of the Violence Against Women Act to be beyond the commerce power. Those developments are welcome, but too weak doctrinally and too thin in the voting majorities. Aside from any optimism from Lopez and Morrison, none ought yet celebrate, for when one considers all the commerce clause cases since the New Deal Era, one sees entrenched and massive judicial abdication of principle, oath, and Constitution. And as Jefferson said of office holders, “Few die and none resign”—an apt apothegm, especially as to supreme court justices.
No one can seriously argue that the commerce clause allows the federal intrusions made in its name. The whole point of the Federalist Papers was to pave the way for ratification by assuaging the fears of those who worried that the new Constitution would be an engine of federal usurpation. Madison dismissed those fears as “chimerical” and Hamilton as “bewildered ravings”, and their writings were the basis on which the Constitution was ratified. To jettison the Constitution’s promise of limited government and the Federalist’s representations to the same effect, as the supreme court has done repeatedly, is not mere breach of contract—far worse, it’s a fraud that wouldn’t be tolerated for a minute if committed by some private corporation. Why then do we tolerate it from the Republic’s highest court?
* Douglass Bartley is the author of The Kiss of Judice: The Constitution Betrayed: A Coroner’s Inquest & Report, a four-volume treatise. The first two volumes are now available through Amazon @ http://tinyurl.com/4yexd3r and http://tinyurl.com/7ex4lg6 respectively. Volume 3 will be available by early summer. He also authored The Proof of God’s Existence & Other Verses on Reason and Faith—rhymed couplets in iambic pentameter—available @ http://tinyurl.com/7oyg5lq. For more information on those titles, see “Pastoral Republican” @ http://douglassbartley.wordpress.com/.
 Warren, Charles, The Supreme Court in United States History, Little, Brown, (1922), p. 501, quoted in Berger, Federalism—The Founders’ Design, University of Oklahoma Press, (1987), p. 121.
 “Abstraction and Authority,” The Bill of Rights in the Modern State, Stone, Geoffrey R., Epstein, Richard A., and Sunstein, Cass R., Eds., University of Chicago Press, (1992), p. 350.
 Article 1, §8, CL. 3.
 Someone ought do a study of how much the misinterpretation of each clause has cost the taxpayers.
 See n. 1, supra.
 317 U.S. at 128.
 156 U.S. 1, 12
 156 U.S. 1, 13
 Berger, Federalism, p. 62.
 See “Pastoral Republican” @ http://wp.me/sD41z-7. “The General Welfare Clause: How a Constitutional Restraint Was Transformed Into a Constitutional Power”.
 73 Virginia L. Rev. 8, p. 1393-94 (1987). http://findarticles.com/p/articles/mi_hb3243/is_n4_60/ai_n28686894/pg_19/
 Federalist № 11. In other places in the Federalist, Hamilton sets commerce apart from manufacturing: “The state of commerce, of arts, of industry.” (№ 21). http://www.constitution.org/fed/federa21.htm In № 36, Hamilton refers to “commerce” in contradistinction to “manufacturing” and “agriculture”. http://www.constitution.org/fed/federa36.htm
Hamilton’s definition of commerce was picked up by Chief Justice Marshall in the first of the great commerce clause cases, Gibbons v. Ogden, 22 U.S. 1, 189, (1824): “Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by proscribing rules for carrying on that intercourse.” http://laws.findlaw.com/us/22/1.html
 Federalist № 40. http://www.constitution.org/fed/federa40.htm (Emphasis added.) In № 42, http://www.constitution.org/fed/federa42.htm he classified the power to regulate foreign commerce as within a class of powers he described in № 41 as “[r]egulation of the intercourse with foreign nations”. http://www.constitution.org/fed/federa41.htm. And in № 42 he referred to the power to regulate interstate commerce within the class of powers “which provide for the harmony and proper intercourse among the states.”
 Dictionary of the English Language, 3rd Ed. (1765).
 “Judicial Verbicide: An Affront to the Constitution”, Modern Age, The First Twenty-Five Years, Panichas, George, Ed., Liberty Press, (1988), p. 455.
 3 Co. Rep. 7a, 76 Eng. Rep. 637 (1584)
 22 U.S. (9 Wheat.) 1, 188-189 (1824) (“We know of no rule for construing the extent of such powers, other than is given by the language which confers them, taken in connection with the purposes for which they were conferred.”)
 Berger, Federalism, p. 132.
 Federalist № 22. http://www.constitution.org/fed/federa22.htm In Federalist № 12, Hamilton continues to speak of commerce primarily in terms of foreign trade: “If . . . there be but one government pervading all the states, there will be, as to the principal part of our commerce, but ONE SIDE to guard—the ATLANTIC COAST.” (By “guard”, he means against contraband trade for which no duties are collected.) http://www.constitution.org/fed/federa12.htm
 Berger, Federalism, pp. 56-57.