The One Question
What is the one question that nobody has been asking in the national congressional town hall meetings?
Why are Congress and the President entertaining a bill that
asserts power that has not been granted to
the Federal Government via the United States Constitution?
The Controversial Clauses Explained
The modern Federal Interpretation of the Commerce Clause is:
"To regulate Commerce ... among the several States"
The modern definition of the word "Commerce" is at best broad to very broad in definition depending on who is citing reference to it. The modern definitions of the Commerce Clause are that "Commerce" extends to "Manufacturing" because manufacturing things result in the production of things that are subsequently traded and exchanged and the very broadly interpreted definition is that Commerce extends to all gainful activity whatsoever.
So what did the framers of our Constitution mean by the word Commerce?
The definition of the word Commerce was used only as a synonym for Trade and Exchange. It is impossible to find any example of a reference to the word Commerce in the Constitutional Convention that means anything other than the word trade. In the Federalist papers the word commerce is never used in such a way that clearly refers to anything other than trade or exchange.1
In Federalist 4, John Jay drew a like parallel between the power of Congress over the militia and commerce when he referred to
"our trade prudently regulated, our militia properly organized and disciplined." 2
In Federalist 53, James Madison states
"Yet some knowledge of the affairs, and even of the laws, of all the States, ought to be possessed by the members from each of the States. 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?"3
So what does to "Regulate ... among the several States" mean?
Scholarly consensus states that this was meant that the Federal government could regulate commerce that occurs between one state and another. It does not mean that government can regulate commerce that occurs entirely within one State, or commerce that concerns or has an effect on another State. 1
Thomas Jefferson explains this in his Opinion on Bank in 1791
"The power given to Congress by the Constitution does not extend to the internal regulation of the commerce of a State (that is to say, of the commerce between citizen and citizen) which remain exclusively with its own legislature, but to its external commerce only; that is to say, its commerce with another State, or with foreign nations, or with the Indian tribes."4
James Madison explains in a letter to Joseph C. Cabell on February 18, 1829 explaining that the clause was meant to establish a giant free trade zone between the states and prevent the state from obstructing commerce through discriminatory taxation.
"For a like reason, I made no reference to the "power to regulate commerce among the several States." I always foresaw that difficulties might be started in relation to that power which could not be fully explained without recurring to views of it, which, however just, might give birth to specious though unsound objections. 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 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 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, in which alone, however, the remedial power could be lodged."5
(1) Thomas E. Woods, Jr. - Lecture, The Constitution: Four Disputed Clauses, http://mises.org/multimedia/mp3/Woods2/2.mp3
(2) Federalist Papers Number 4 - http://www.constitution.org/fed/federa04.htm
(3) Federalist Papers Number 53 - http://www.constitution.org/fed/federa53.htm
(4) Viginia.edu - http://etext.virginia.edu/jefferson/quotations/jeff1320.htm
(5) The Founder's Constitution, Article 1 Section 8 Clause 3 - http://press-pubs.uchicago.edu/founders/documents/a1_8_3_commerces19.html
TJ Lawrence originally published this article on 08-28-2009 at www.CampaignForLiberty.com.