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October 29th, 2010

Compromising With Commerce

By Nathan Tucker

Congress has the authority under Article I, Section 8 to “regulate commerce with foreign nations, and among the several States, and with the Indian tribes.”  Ever looking to expand its power, Congress, with the acquiescence of the Supreme Court, has long ago seized on this Clause as authority to regulate pretty much every detail of American life.

The Supreme Court has gone so far as to uphold federal legislation that prohibited local, non-economic activity such as growing wheat or marijuana for personal consumption under the absurd theory that, since the home-grown product is used instead of that which is transported across state lines, it has an effect on interstate commerce.

Such a theory, however, transforms the federal government into one with unlimited powers.  The Commerce Clause, therefore, cannot be understood as an open-ended grant of authority to Congress but instead must mean something much narrower in scope.  A review of the historical record shows that the Commerce Clause only grants Congress the power to regulate commercial trade between the States.

Though the term “commerce” has an expansive meaning in the 21st century, at the time of the Constitution’s ratification it was limited to “the exchange of one thing for another; interchange of anything; trade, traffic.”  (Samuel Johnson’s Dictionary of the English Language, 1785 edition.)    By contrast, “manufacturing” was defined as “1.  The practice of making any piece of workmanship.  2.  Anything made by art,” and the word “agriculture” was defined as “[t]he art of cultivating the ground; tillage; husbandry.”

This public understanding of the distinct and narrow meaning of commerce was clearly shared by those who drafted and ratified the Constitution.  Of the twenty-six references to interstate commerce in Madison’s notes on the Constitutional Convention, all of them referred narrowly to “trade” or “exchange” rather than simply commercial activity.

In none of the sixty-three times the word “commerce” was used in The Federalist did it ever refer to anything other than the trade or exchange of goods.  In fact, the terms “commerce,” in both The Federalist and the debates at the state ratifying conventions, was often used distinctly from manufacturing and agricultural activity.

Originally understood, then, Congress’ power to regulate commerce only extends to interstate trade (i.e., the sale and transportation of goods and services) and not local economic activity such as manufacturing, agriculture, and mining.  Under the Articles of Confederation, the States were suffering from tariffs and other trade barriers that they imposed on each other, and the purpose of the commerce power in the new Constitution was to provide Congress with the authority to create a free trade zone among the States.

At this point in history, however, it may be unrealistic to hope that Congress will restrict its commerce power to its original understanding.  The public demand for Congress to act, particularly in the area of public safety, makes it politically expedient for our elected officials to ignore constitutional restraints on their power.

There are, however, reasonable and politically viable steps that may be taken to restore some resemblance of a limited, enumerated federal government.  First, if the Commerce Clause is to mean anything, it is that Congress does not have the power to regulate, regardless of its effect on interstate commerce, (i) any trade that is confined within a single State, or (ii) non-economic activity.

Second, trade does not include all economic activity but is limited to the sale and transportation of goods and services between two or more States.  Trade has a definable starting point which does not include manufacturing, agriculture, or mining.  Similarly, trade has a definite ending point and, once the transaction is completed, Congress cannot regulate the good or service any longer.

Third, Congress cannot use its Commerce Clause power as a pretext to regulate subjects unenumerated in the Constitution, with two exceptions.  As law professor Glenn Reynolds has noted:  “By virtue of its having been enumerated, after all, the commerce power was part of a scheme to limit government, not to expand it. Yet when the regulation of commerce becomes not an enumerated end of federal government but a means to some other unenumerated end, the original scheme is turned upside down: what was meant to be a brake becomes an accelerator.”

But, as Reynolds points out, therein lies the problem because “the power to regulate commerce can never be anything but a means.  Congress, after all, does not regulate commerce for its own sake, but rather for the sake of some other end.”  In other words, since regulation is only a tool or a means to an end, the question then becomes what are the constitutional ends for which Congress can regulate interstate trade.

For instance, can it regulate for the public safety?  Or for the broader consumer “welfare?”  The safety of workers engaged in interstate trade?  The general economic good?  The environment?  Heath care?  Can it prohibit trade it considers morally harmful such as pornography, prostitution, drugs, automatic weapons, etc.?  Can it regulate prices on products and services in interstate trade?

While perhaps laudable, the problem with all of these goals is that they are unenumerated in the Constitution.  As Reynolds notes:  “The dilemma, then, is this: if Congress can regulate interstate commerce for any end, then the commerce power is essentially boundless and the doctrine of enumerated powers is empty–indeed, was empty right from the start. That reading cannot be right, for it would eviscerate the very theory of the Constitution…”

The original purpose for federal regulation was understood by the ratifying generation to be the creation of an interstate free trade zone, and the last century has shown that, unmoored from that goal, there is no limit to what Congress can regulate.  Though it may be unrealistic to hope that Congress will return to that original goal, is it possible to create a politically acceptable restraint on congressional regulatory goals that would allow some resemblance of a federal government of limited, enumerated powers?

There are only two regulatory ends that would achieve this balance:  (i) the protection of consumers from unsafe or fraudulent products and services in interstate trade; and (ii) the establishment of uniform rules for products simultaneously consumed across state lines (i.e., radio, television, and internet and telephone service).

Though this would still allow Congress rather broad unenumerated authority, it would ensure that there are substantial limitations on congressional authority.  Any other goal, be it consumer welfare or the economic good of the country, would give the federal government an unlimited “police power” to regulate as it sees fit for the general welfare of the country.

To illustrate this compromise principle at work, Congress could regulate the safety of new prescription pills in interstate trade even though such regulations actually govern the manufacturing of such medicine (i.e., the engineering and processes used to develop it).  It would, however, prevent federal attempts, direct and indirect, to create minimum wage laws or regulate unions because they have nothing to do with public safety or fraud prevention.

Fourth and finally, Congress lacks the authority under the Commerce Clause to coerce or require participation in interstate trade.  Until recently, even the most ambitious politician did not believe the Clause gave Congress this power.

In conclusion, these reasonable restraints on Congress’ commerce power are a compromise with the original understanding of that power, but a compromise born out of political necessity.  They are an effort to restore, as much as politically plausible, some resemblance of a federal government of limited, enumerated powers.

Additionally, the primary focus of these limitations should be the prevention of further unconstitutional legislation by Congress and the repeal of the most egregious acts of the recent past, such as ObamaCare.  If this is politically unattainable, it is pointless to begin discussing the repeal of more established federal statutes such as local workplace laws and environmental regulations of in-state economic activity.

But this is a start, and it is long past due that We the People demand that our elected officials begin to take incremental steps towards constitutional responsibility once again.

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About the Author

Nathan W. Tucker

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