In a law review article titled “To Regulate, Not Prohibit: Limiting the Commerce Power,” New York University Law Professor Barry Friedman, and 2011 New York University Law graduate, Genevieve Lakier take on the daunting task of reasserting the historic and genealogical lineage of the Commerce Clause from its inception through the country’s 237 years of existence as a federal republic.
This thorough and thoughtful 67 page treatise is broken down into three distinct eras. In the first section, the authors cite numerous uses and misuses of commerce power, including a legal concept allowing the federal government to prohibit commerce of certain goods or fungible items.
The Commerce Clause is found at: Article 1, Section 8, Clause 3 of the Constitution, and declares: the congress shall have power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”
Lawyers and laity alike generally assume the Congress’s power “to regulate” commerce, includes the authority to prohibit it. Professor Friedman points out that historically, this is not how the Commerce Clause has always been understood and practiced.
“At the Founding, and roughly 115 years thereafter, the dominant view was that Congress did not possess the authority to ban goods merely because they crossed state lines.”
“While there was paucity of discussion at the Constitutional Convention about the domestic commerce power, extant evidence suggests the Framers neither imagined or intended Congress to determine, via prohibition, what kinds of goods could move in interstate markets.” However, “Congress’s power over foreign commerce received far more attention, and here it was clear that the power “to regulate” foreign commerce included the power to prohibit it.”
“The primary reason for granting Congress the domestic commerce power was to facilitate interstate trade and protect it against the sort of protectionist state trade policies that occurred all too frequently under the Articles of Confederation. These protectionist type laws, “proliferated in the weak economic conditions of the post-Revolutionary period, as states attempted to protect local manufacturers by discriminatory taxing and regulating domestic imports and by restricting access of the states’ vessels into local ports. These measures generated increasing concern about their effect on the national economy and political unity.”
Alexander Hamilton argued in Federalist No. 22:
“The interfering and neighborly regulation of some States, contrary to the true spirit of the Union, have, in different instances given just cause and umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained by national control, would be multiplied and extended, till they become not less serious sources of animosity and discord than injurious impediments to the intercourse between the different parts of the confederacy.”
“The Framers clearly sought to take away from the states, the power and ability to legislate interfering and neighborly regulations of this sort. They also enabled Congress to create uniform rules for trade. The Framer’s primary goal of the Commerce Clause was to facilitate the unrestrained intercourse between States, which was described by Alexander Hamilton in Federalist No. 11, in which he believed would promote both “economic prosperity and political unity.”
Prof. Friedman declares that in his research, he found no record of, or a suggestion made, during the framing and ratification of the Constitution that “in addition to facilitating an unrestrained intercourse between the states, Congress would also be empowered to restrain such exchanges, by restricting what goods could cross state lines or be sold in interstate markets.”
When the delegates referred to the Congress’s interstate commerce powers, they referred to them exclusively as a solution to the problem of burdensome or discriminatory state legislation. The few documented occurrences of delegates discussing Congress’ domestic powers generally opined congruous with the ideology promulgated by Madison and Hamilton in the Federalist Papers.
Professor Friedman argues that in the absence of other recorded debates, “which hardly provides irrefutable evidence” of the clause’s constitutional meaning, he believes, “the silence speaks loudly given the quite explicit acknowledgement that under it’s foreign commerce power, Congress would possess the power to not only to regulate, that is, to set the rules for trade with foreign nations, but also to limit it.”
In regard to foreign commerce,”there was wide agreement among the delegates in Philadelphia that Congress would have the authority to pass what were colloquially referred to as navigational acts, restricting what kinds of ships could legally bring goods into and out of the United States, and what kinds of goods they could carry.”
By empowering Congress to limit foreign trade, it was believed to be necessary to defend the interests of the United States against the “exclusionary trade policies” of Great Britain, which were implemented after the Revolutionary War. These laws forbade the ships and most goods of the United States from access to British ports which caused extreme harm to the industries of the new fledgling nation, which relied greatly on trading with Britain and it’s other colonies.
The power to ban goods of foreign nations was debated at great lengths within the convention hall. This power was not granted “unknowingly or without a challenge. The Federalists promoted the idea that one of the major benefits of a new Constitution was that the delegates could grant Congress the ability to enact prohibitory regulations capable of excluding Britain from all of the new nation’s ports.”
Delegates from southern states were concerned Congress would limit foreign trade, benefiting the northern states. The southern states were also concerned Congress would use their new-found power to limit the importation of slaves. The delegations of Georgia and South Carolina threatened to walk out of the convention if their concerns were not explicitly acknowledged within the convention. Although the southern delegates had concerns with limitations being placed upon the importation of slaves from foreign nations, these same delegates failed to voice a single concern regarding the importation of slaves from the several member states covered by the interstate portion of the commerce clause.
Historian, David Lightner suggests,
“The Anti-federalists racked their brains to conjure up every possible objection to the Constitution, not one of them ever suggested that it (the interstate commerce clause) opened the way for Congress to restrict the interstate movement of slaves.”
Mr. Friedman claims, “other esteemed historians have interpreted this silence, (of the southern states on this issue) to be decisive proof that, Congress’s interstate commerce powers were not intended by the Framers to empower Congress to prohibit the interstate sale, or transport of slaves, or anything else.”
Some other delegates were concerned the Commerce Clause granted Congress the ability to establish “mercantile monopolies,” meaning to dictate which persons or entities could provide certain types of goods and services to the interstate market. Friedman concedes,
“It seems to have occurred to no one that Congress might act not only to limit who could provide goods and services to the interstate market, but also to limit what kinds of interstate markets could exist. In short, both positive and negative evidence suggests that the Framers did not intend, and probably did not even imagine, that the Interstate Commerce Clause would be read in such a way as to give Congress the power to restrain interstate intercourse, as well as promote it.”
“Those who believe Congress has the power to restrain interstate commerce, generally rely on the argument that, since Congress’s power to regulate interstate commerce appears in the same sentence granting the power “to regulate” foreign commerce, the argument fallaciously promotes that the two powers should be read in pari materia, or treated the same, as a subject matter. Unfortunately this argument does not yield any evidence or standing from the Founders to support this position.”
Professor Friedman adds,
“the foreign and interstate commerce powers were understood, and aimed at distant evils, suggesting the power to regulate each must be read to address distinct problems.” James Madison argues this same point “in 1819, while debates concerning the introduction of slavery in the Missouri territories emerged. Madison expressly denied Congress had authority to ban the interstate transfer of slaves, notwithstanding its’ clear authority to ban their foreign import and export.”
In a letter written to a Virginia senator, Joseph Cabell, Madison made his views unambiguous: the interstate and foreign commerce clauses were not intended, nor construed, to vest in Congress equivalent powers when regulating domestic and foreign commerce.
“I always foresaw difficulties might be started in relation to the interstate commerce power. Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it. Yet it is very certain it grew out of the abuse of the power of the importing states in taxing the non-importing, and was intended as a negative and preventative provision against injustice amongst the states themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged. And it will be safer to leave the power with this key to it, than to extend it all the qualities and incidental means belonging to the power over foreign commerce.”
Friedman’s astute examination of the express and implied understanding of “to regulate,” recognizes Madison’s interpretation was widely held amongst the founders, “despite the similarity of constitutional language, that the two powers (foreign and domestic commerce) should be interpreted differently, in light of the different problems to which they were addressed.”
Professor Friedman’s concluding subject detailed within the first 24 pages of this investigation, and addressed by this review, consists of the judicial interpretation in the first century’s post-ratification practice of the Commerce Clause.
“Although Congress regularly passed laws prohibiting foreign trade, it did not pass any laws to prohibit domestic interstate trade for well over a hundred years. On a few occasions, Congress passed laws restricting what goods could travel across state