The View From 1776

The Constitution’s Article I, Section. 8 says, inter alia:

“The Congress shall have Power...To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes...”

In the hearing for Supreme Court nominee Sonia Sotomayor, she was asked to comment upon the Constitution’s commerce clause.  Senator Dianne Feinstein inquired about the extent to which the Court can restrain Congress’s use of the commerce clause to regulate anything and everything it lays eyes upon.  As Senator Feinstein noted, that will become particularly important as Congress and executive branch regulatory bodies embark upon procrustean regulations under President Obama’s proposed “green” legislation.

Congressional Democrat/Socialists understandably want no Constitutional impediments to new New Deal laws and regulations that ignore citizens’ preferences while mandating, for example, what citizens may eat, which of their thoughts will be prosecuted as hate crimes, what sort of medical care they will be permitted to have, what kind of automobiles GM will be allowed to make, and what sort of automobiles citizens must purchase, along with how their homes must be constructed, heated, and cooled. 

All such things can be subsumed under the commerce clause, as Congress interprets it, because almost any human activity can be said to have an effect upon interstate commerce.

Roughly 150 years’ Constitutional jurisprudence before the New Deal not withstanding, the liberal-progressive view is that Supreme Court cases in recent years have resulted in some deformity to the Constitution, to the extent that the Court’s rulings have in limited degrees curtailed Federal authority over state and local affairs.  This is what is now styled the issue of Federalism, the conservative thesis that the Ninth and Tenth Amendments of the Bill of Rights actually meant something tangible when they reserved to the states and to the people powers not granted by the Constitution to the Federal government.

Since 1937, Federal courts have interpreted the Constitution’s commerce clause as conferring, in effect, unlimited power upon Congress to regulate anything and everything occurring anywhere in the universe.

If one accepts this interpretation, then anything can be regulated by Congress under the commerce clause power.  Carried to the extremes favored by liberal-socialists, even the birth of a baby is subject to regulation, because it creates new demand for products, some of the components of which may move in interstate commerce.  Is abortion a means to regulate interstate commerce?

This is an exceedingly steep and slippery slope headed straight toward the precipice of Stalin’s and Mao’s tyrannical regulation.

It is clear that any government that has unlimited power to regulate all activity by its citizens is a totalitarian government.  Even if some leaders of such governments act with restraint, the power remains available to unscrupulous and power-hungry leaders. 

It is precisely this that the colonists fought against in 1776.  Writers of the Constitution were at pains during the debate over ratifying the Constitution to assure everyone that it would create a government of limited powers.

In Federalist No. 32, Alexander Hamilton wrote:

An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY delegated to the United States. This exclusive delegation, or rather this alienation, of State sovereignty, would only exist in three cases: where the Constitution in express terms granted an exclusive authority to the Union; where it granted in one instance an authority to the Union, and in another prohibited the States from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally CONTRADICTORY and REPUGNANT.



It is a simple fact that nowhere in the Constitution is there to be found language empowering Congress or the President to impose most of the millions of regulations that control everyone’s daily life, either directly or indirectly.  For example, on what Constitutional basis can Congress compel states and cities to provide wheel-chair access to their premises?  Where resides the authority to make it a Federal crime to think certain things in the course of committing a crime under state laws, as is done with Hate Crime statutes?

Whether such measures are good or bad is not the question.  The issue is what are the limits on Federal power imposed by the Constitution?

The source of such powers, according to liberal-progressives, is the Constitution’s commerce clause.  Their Constitutional-law guru in the New Deal era of the 1930s was Professor Edward S. Corwin, who wrote in The Commerce Power versus States Rights: “The most important source of national power touching private conduct is, in ordinary times, the power of Congress to regulate commerce among the states.”

Note that Professor Corwin wrote this in 1936, after the Supreme Court had invalidated many parts of President Franklin Roosevelt’s socialistic state-planning programs.  His complaint was that the Court was too restrictive on Congressional powers over the states and citizens within the states. 

The following year, with his “court packing” scheme, President Roosevelt attempted, in the words of Congressional liberals who defeated it, to make of the Supreme Court a rubber stamp for executive orders of the President.  Shortly thereafter, several elderly Justices retired, allowing President Roosevelt to appoint Justices who saw no objection to essentially unlimited extension of Congressional power over the states.

Let’s look at the intent of the founders when they wrote the commerce clause, as described in Federalist No. 42, where James Madison wrote:

The powers included in the THIRD class are those which provide for the harmony and proper intercourse among the States. Under this head might be included the particular restraints imposed on the authority of the States, and certain powers of the judicial department; but the former are reserved for a distinct class, and the latter will be particularly examined when we arrive at the structure and organization of the government. I shall confine myself to a cursory review of the remaining powers comprehended under this third description, to wit: to regulate commerce among the several States and the Indian tribes; to coin money, regulate the value thereof, and of foreign coin; to provide for the punishment of counterfeiting the current coin and secureties of the United States; to fix the standard of weights and measures; to establish a uniform rule of naturalization, and uniform laws of bankruptcy, to prescribe the manner in which the public acts, records, and judicial proceedings of each State shall be proved, and the effect they shall have in other States; and to establish post offices and post roads. The defect of power in the existing Confederacy to regulate the commerce between its several members, is in the number of those which have been clearly pointed out by experience.

To the proofs and remarks which former papers have brought into view on this subject, it may be added that without this supplemental provision, the great and essential power of regulating foreign commerce would have been incomplete and ineffectual. A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquillity.

To those who do not view the question through the medium of passion or of interest, the desire of the commercial States to collect, in any form, an indirect revenue from their uncommercial neighbors, must appear not less impolitic than it is unfair; since it would stimulate the injured party, by resentment as well as interest, to resort to less convenient channels for their foreign trade. But the mild voice of reason, pleading the cause of an enlarged and permanent interest, is but too often drowned, before public bodies as well as individuals, by the clamors of an impatient avidity for immediate and immoderate gain. The necessity of a superintending authority over the reciprocal trade of confederated States, has been illustrated by other examples as well as our own. In Switzerland, where the Union is so very slight, each canton is obliged to allow to merchandises a passage through its jurisdiction into other cantons, without an augmentation of the tolls. In Germany it is a law of the empire, that the princes and states shall not lay tolls or customs on bridges, rivers, or passages, without the consent of the emperor and the diet; though it appears from a quotation in an antecedent paper, that the practice in this, as in many other instances in that confederacy, has not followed the law, and has produced there the mischiefs which have been foreseen here. Among the restraints imposed by the Union of the Netherlands on its members, one is, that they shall not establish imposts disadvantageous to their neighbors, without the general permission.

The intent of the commerce clause was further illuminated by the first case to be decided under it by the Supreme Court, Gibbons v. Ogden, in 1824.  This case arose in the conflict between an act of Congress regulating shipping trade along the coasts of the various states and a monopoly granted by the State of New York to operate steamboats on the waters of the state.  The effect of the New York monopoly was to stop steamboats from other states attempting to enter the harbor of New York City.

Ruling against the New York monopoly, Chief Justice John Marshall wrote:

The subject to which the [commerce clause] power is next applied is to commerce “among the several States.” The word “among” means intermingled with.  A thing which is among others is intermingled with them.  Commerce among the States cannot stop at the external boundary line of each State, but may be introduced into the interior.....

The completely internal commerce of a State, then, may be considered as reserved for the State itself.

In the years after President Roosevelt’s 1937 Court-packing attempt (which proposed increasing the number Justices from nine to twelve, so that the President Roosevelt would always command a majority), liberal-progressives nonetheless got their way.  Justices appointed thereafter by President Roosevelt were schooled in Justice Oliver Wendell Holmes’s legal realism and tended to accept the belief that a good and well-ordered political state necessitated collectivized power at the top to give socialist state-planners full scope to restructure society and impose social justice.

After 1937, the Court sanctioned increasingly broad-impact Congressional enactments that regulated economic activity confined entirely within individual states.  This obviously contravened the ruling of Chief Justice John Marshall in the Gibbons v. Ogden case stated above.

The Court’s sophistic rationalization was that any activity, even if confined to a single city within a single state, could be construed to have a “substantial effect” on commerce in other states and among the states. 

Relying at least in part upon the commerce clause, New Deal regulations imposed upon agriculture required farmers to limit the acreage planted in certain crops.  One farmer was jailed, because he planted a small additional acreage in crops to be consumed only by his own family.  Federal regulators argued, and the courts agreed, that even if the farmer’s additional crop never left his farm, it still had a substantial effect on interstate commerce, because any additional supply of a commodity affected, however imperceptibly, the market price for the commodity, which thereby affected interstate commerce.

Think about it somewhat more broadly.  Whence comes the power of Congress to regulate an entire sector of the economy for the purpose of controlling supplies and prices?  This is socialism, pure and simple.  And in a socialistic political state it is presumed that socialist intellectuals’ knowledge of the inevitable course of history entitles and enables them to plan activity within industries more effective than the owners of the businesses. 

It assuredly doesn’t originate in the Constitution, which was based squarely on individualism and private property rights.