What Does it Mean to ‘Regulate Interstate Commerce’?
Words change meaning over time. Consider the word ‘nice’:
“Late 13c., ‘foolish, stupid, senseless,’ from Old French. nice ‘silly, foolish,’ from Latin. nescius ‘ignorant,’ lit. ‘not-knowing,’ from ne- ‘not’ (see un-) + stem of scire ‘to know’ [from which we get the word ‘science’]. . .”
Today, ‘nice’ means to be “pleasing; agreeable; delightful.” Quite a difference.
The Constitution uses words like “welfare” and “regulate” that had specific meanings in the 18th century. For example, with the phrase “provide for the general welfare,” many Americans have been led to believe that the Constitutional framers were establishing the principle of wealth redistribution. This is far from the truth as James Madison made clear in Federalist No. 41.
The only way to determine what words meant in the eighteenth century is to go back to that period of time to see how they were defined and used. Thomas Jefferson put it well in a letter he wrote to William Johnson in 1823:
“On every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.”
“Before 1937, the Supreme Court’s interpretation was that the Clause authorized Congress to regulate only buying and selling across state lines — the sort of thing we might label economic exchange, economic intercourse, or mercantile trade.” In this sense, “regulate” means to make trade regular, as Judge Andrew Napolitano argues in this video. It means this, but it means more than this.
It didn’t take long before an expanded definition of “commerce” developed to suit the growing nature of the federal government. In the book The Power to Govern Walton Hale Hamilton, an economist and law professor with ties to the Roosevelt administration, argued that “the Commerce Clause should be reinterpreted to grant Congress authority to regulate the entire national economy.”1
It’s no accident that the Obama administration tried to use the expanded definition of commerce in defense of ObamaCare. Fortunately, the Roberts’ Court did not take the bait. Following Jefferson’s methodology
“In 2001, Professor Randy Barnett published the results of a survey of appearances of ‘commerce’ in various eighteenth century sources: lay dictionaries, the debates at the 1787 federal convention, the debates in the state ratifying conventions, and in the Federalist Papers. He concluded that the word was used almost exclusively in the sense of exchange/economic intercourse.2
Robert G. Natelson, former Professor of Law at the University of Montana and now a constitutional law consultant in Colorado, goes on to argue that the Commerce clause “has three objects, not just one”: [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”3
But a major reason for giving Congress authority to regulate foreign commerce was to enable Congress to keep out foreign goods. The idea was to encourage American manufactures and rectify an unfavorable balance of trade. And a major reason for giving Congress power to regulate the Indian trade was [to] allow Congress to block or limit sale of certain goods to the Natives, specifically liquor and firearms.4
To argue from the above that the commerce clause means “the whole economy, the whole system of exchange, the whole congeries of interrelated gainful activities, which the American nation is to carry on,” has no foundation in history or fact. Of course, neither facts nor history mean much to people who want to expand the powers of government.
- Robert G. Natelson, “The Legal Meaning of ‘Commerce’ in the Commerce Clause,” St John’s Law Review, 80:789 (October 2006), 793. [↩]
- Natelson, “The Legal Meaning of ‘Commerce’ in the Commerce Clause,” 794. [↩]
- U.S. Constitution: Art. I, § 8, clause 1, 3. [↩]
- Natelson, “To ‘Regulate’ Commerce Means More than to ‘Make it Regular.’” [↩]