The Commerce Clause

[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes

The federal government claims that Article I, Section 8, Clause 3 of the Constitution gives it the power to regulate and control everything from healthcare, to what kind of lightbulbs we can buy, and just about anything in between.

As Justice Clarence Thomas pointed out, under the Court’s’ expansive definition of the “commerce clause,” the federal government has “no meaningful limits.”

But the meaning of the word “commerce” wasn’t always understood so broadly. In the founding era, it almost always had an economic meaning and was associated almost exclusively with the sort of activities engaged in by merchants.

As Rob Natelson noted in his paper “The legal meaning of commerce in the Commerce Clause,” this included “buying and selling products made by others (and sometimes land), associated finance and financial instruments, navigation and other carriage, and intercourse across jurisdictional lines.” [emphasis added]  

The commerce clause was never meant to give the federal government power to regulate manufacturing, agriculture, labor laws, workplace safety or the host of other activities now micromanaged by the feds.

James Madison explained why the federal government was empowered to regulate interstate commerce in a letter to J. C. Cabell dated February 13, 1825. It was meant primarily to ensure free trade between the states.

“It is very certain [the power to regulate interstate commerce] 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.

NYU law professor Barry Friedman wrote:

“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.”

When the federal government regulates economic activity that doesn’t directly relate to trade across foreign borders or state lines, it usurps power and violates the Constitution.


James Madison

[The Commerce Clause]…was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government

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Thomas Jefferson

Under the power to regulate commerce, they assume indefinitely that also over agriculture and manufactures, and call it regulation to take the earnings of one of these branches of industry, and that too the most depressed, and put them into the pockets of the other, the most flourishing of all.

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