The parts of our federal Constitution are so interrelated that it is impossible to understand a single clause therein without considering all of the other provisions of our Constitution.
Article I, ยง8, clause 3, US Constitution, states:
โThe Congress shall have Power โฆ To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;โ
The original intent of the power to regulate commerce โamong the several Statesโ is proved here:ย Does the โinterstate commerceโ clause authorize Congress to force us to buy health insurance?ย That paper proves that the primary purpose of the power is to prohibit the States from imposing tolls and tariffs on articles of import and export โ goods & commodities โ merchandize โ as they are transported through the States for purposes of buying and selling.
But recently, some have asserted that since โforeign Nationsโ, โthe several Statesโ, and โthe Indian Tribesโ are grouped together in the same clause, it necessarily follows that Congressโ power to โregulate commerceโ with each of them is identical. And since Congress has broad powers overย foreignย commerce, they conclude that Congress has those same broad powers overย interstateย commerce, and may lawfully, for example, ban the movement of physical goods [such as firearms] across state lines.
So letโs look at that clause in the Light cast by the rest of the Constitution.
Three totally different and separate entities
Three entities are listed in the same clause at Art. I, ยง8, cl. 3;ย but we may not properly conclude that the extent and nature of the regulation permitted over the three entities is the same. Thatโs because each entity has a distinctly different status, and is treated accordingly in the Constitution.
The several States
The States are the sovereign entities whichย createdย the federal government when they ratified the Constitution.ย At Art. I, ยง10, the States agreed that they would not individually exercise the power to make commercial and trade treaties with foreign Nations; but would exercise that power collectively by delegating to the โcreatureโ of the Constitution โ the national government โ the power to make such Treatiesย (Art. II, ยง2, cl. 2).
The States have a high status: They areย The Membersย of the Federationย the States created when they ratified our Constitution. The federal government is merely the โcreatureโ of the constitutional compact the States made with each other when they ratified the Constitution, and is completely subject to its terms.
Foreign Nations
Various provisions are relevant to the power the States delegated to Congress respecting commerce with foreign Nations:
? Pursuant to its treaty making power granted at Art. II, ยง2, cl. 2, the United States may make treaties with foreign nations addressing a great many commercial and trade matters, territorial and fishing waters [our ships wonโt fish within X miles of your shoreline, etc.], inspections of products, mutual assistance to merchant ships in distress at sea, assistance to each Partyโs sick merchant seamen, etc.
? Art. I, ยง8, cl. 1, grants to Congress the power to levy โDuties, Imposts [tariffs on imports] and Excisesโ. As they did with the infamous Tariff Act of 1828, Congress has the power to shut down imports from foreign Nations by imposing exorbitant tariffs.
? Art. I, ยง8, cl. 10, grants to Congress power to define Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations. Congress may ban or restrict commerce with foreign nations who fail to rein in their countrymen who are operating pirate ships or violate the Law of Nations.
? Art. I, ยง8, cl. 11, grants to Congress the power to declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water. Congress may restrict or ban commerce with warring foreign nations and their allies, and make rules about seizing their cargo (โbountyโ).
? Imports and exports are unloaded and loaded at dockyards over which the federal government has (pursuant to Art. I, ยง8, next to last clause) exclusive legislative authority. Congress may make whatever inspection laws need to be made to protect us from contaminated imports โ such as agricultural products infested with bugs or diseases, other contaminated products, etc.ย 1
So Congressโ power to โregulate commerce with foreign Nationsโ is exercised by means of Treaties the United States makes with foreign Nations, and by means of Laws made by Congress.ย In the course of exercising this delegated power, the Legislative and Executive Branches have broad authority to restrict or ban commerce with foreign Nations, and determine its parameters.
Congress has no such powers over the Member States.2
Indian Tribes
Inย Federalist No. 24ย (10thย & 11thย paras), Hamilton speaks of the necessity of keeping small garrisons on our Western frontier which are necessary to protect โagainst the ravages and depredations of the Indiansโ; and that some of these posts (garrisons) โwill be keys to the trade with the Indian nations.โ
Inย Federalist No. 42ย (11thย para), Madison speaks of the unsettled status of Indians and says this has been a question of frequent perplexity and contention in the federal councils.
So! It is a clear misconstruction of Art. I, ยง8, cl. 3 to assert that Congress has the same power to regulate commerce between the Member States that it does to regulate commerce with foreign Nations and the Indian Tribes.
James Madisonโs letter of February 13, 1829 to J.C. Cabell
In Madisonโs letter ofย February 13, 1829 to J.C. Cabell, he warns that the claim that the power to regulate commerce with the three entities is identical, isย superficially plausible, but actually wrong.
He then says, as to the power to โregulate Commerce among the Statesโ:
โโฆ it is very certain that it grew out of the abuse* of the power by the importing States, in taxing the non-importing; and was intended as a negative & preventive provision agst. injustice among the States themselves;ย rather than as a power to be used for the positive purposes of the General Govt.ย 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 to it all the qualities & incidental means belonging to the power over foreign commerceโฆโ [italics added]
*see the Federalist No 42.โ
So Madisonย warns that we better stick with the original understanding;ย and not interpret the clause to mean that the federal government has the same broad power overย interstate commerceย that it has over commerce with theย foreign Nations and with the Indian Tribes.
Endnotes:
1ย The fed govโt canโt lawfully ban imports of guns and arms because the 2ndย Amendment prohibits the fed govโt from infringing our right to keep and bear arms. Furthermore, a disarmed citizenry is inconsistent with Congressโย obligation, imposed by Art. I, ยง8, cls 15 & 16, to provide for the arming and training of the Militia of the several States. To see what it was like when we elected to Congress people who knew and obeyed our Constitution, read theย Militia Act of 1792. But until We The People learn our Constitution, we will continue to elect ignoramuses to Congress.ย We cannot be ignorant and free โ andย youย canโt see that a candidate is ignorant unlessย youย are knowledgeable.
2ย Domestically, Congress has the power to imposeย excise taxesย on specific articles in commerce. For a discussion of โimpostsโ, โexcisesโ and the Whiskey Rebellion, seeย The Plot to Impose a National Sales Tax or Value Added Tax.
- Treaties: When are they part of “the supreme Law of the Land?” - November 22, 2020
- Read the Commerce Clause in the Light cast by the other Parts of our Constitution - February 10, 2020
- Clearing up the confusion about Marbury v. Madison - January 29, 2020