LOCATING THE BOUNDARIES:
THE SCOPE OF
TO REGULATE COMMERCE
ROBERT H. BORK* AND DANIEL E. TROY**
I. INTRODUCTION .....................................................
II. THE PROBLEM FACING THE CONTINENTAL CONGRESS UNDER THE ARTICLES OF
CONFEDERATION .................................................. 855
III. THE LANGUAGE OF THE COMMERCE CLAUSE ... 859
1. What "Commerce" Is ................................... 861
2. What "Commerce" Is Not ........................... 863
a. Manufacturing, Industry, and Labor ... 864
b. Agriculture .............................................. 867
B. "To regulate"
1. The Power to Prohibit .................................. 869
2. An Exclusive Power to Regulate? .............. 871
IV. THE SUPREME COURT'S INDETERMINATE JURISPRUDENCE
A. The Marshall Court Speaks ...................................
B. Relative Quiet: 1836-1888
C. The Turning Point: The Pre-New Deal ................. 879
D. The New Deal And Beyond ....................................
V. APPLYING THE ORIGINAL UNDERSTANDING TO CURRENT PROBLEMS
A. The Current Problem
C. The Environment
D. Criminal Law
E. Transportation Regulation ....................................
IV. CONCLUSION ........................................................
* Senior Fellow, American Enterprise Institute.
** Chief Counsel, U.S. Food and Drug Administration.
The authors wish to thank Michelle Boardman, an associate at Wiley, Rein &
Fielding, for her invaluable research assistance in preparing this Article. We
are also grateful for the insightful comments of John Schmitz, Rob Gasaway, Dr.
Michael Greve, and Professor Brad Clark. Any errors are either Mr. Troy's or
Judge Bork's, and each intends to blame the other one. This Article was
prepared for a symposium sponsored by the U.S. Chamber of Commerce, which
provided financial support. Mr. Troy's views do not reflect the position of the
The Congress shall have Power ... To regulate Commerce ... among
the several States.
— U.S. Constitution, Art. I, § 8, cl.
In the wake of the American Revolution, neither the Continental Congress
nor the States acting on their own could respond effectively to the external
and internal trade disputes that threatened the new country's prosperity and
peace. "It may be doubted," wrote Chief Justice John Marshall, "whether any of
the evils proceeding from the feebleness of the federal government, contributed
more to that great [constitutional] revolution which introduced the [modern
constitutional] system, than the deep and general conviction, that commerce
ought to be regulated by Congress."
Accordingly, although the federal government was to be limited to exercising
only enumerated powers, those powers included the power to regulate commerce,
thus remedying this deficiency in the Articles of Confederation.
Regrettably, but perhaps inevitably, "[t]he ink was not yet dry on the
Constitution when its revision began." Almost
immediately, Congress began pressing beyond specifically enumerated powers
granted it in Article I. As a result, today, Americans encounter a national
government far more expansive than the Framers and men of their generation
could ever have imagined.
Despite this expansion of federal power, however, certain actions and
policies of the several States increasingly threaten the free flow of goods and
services in interstate commerce; we still face the problem that led to the
creation of the federal Constitution. Unsure about the scope of the federal
commerce power and, accordingly, the appropriate limits on state interference
with interstate commerce, the courts, executives, and legislatures, at the
federal and state level alike, are often at a loss about how to approach the
Uncertainty stems, in part, from the recognition that the scope of the
commerce power has expanded so far beyond the original understanding of that
power's boundaries that any attempt to adhere strictly to its original meaning
today would likely be futile and inappropriate. This Article attempts to
provide direction to those who, although fully aware of these significant and
enduring changes, seek nonetheless to assess the propriety of federal and state
legislation with an eye toward respecting the original purpose of the
enumeration of congressional power and, therefore, to effect a proper balance
between the national and state government.
There is no possibility, today, of adhering completely to the original
constitutional design. Such a daring plan would require overturning the New
Deal, the Great Society, and almost all of the vast network of federal
legislation and regulation put in place in the last two-thirds of the twentieth
century. It appears that the American people would be overwhelmingly against
such a change and no court would attempt to force it upon them.
Moreover, as Edward Banfield has argued, the attempt to define the outer
limits of national power, as Article I, Section 8 of the Constitution does, was
likely a flawed enterprise, doomed to failure from the very beginning:
Nothing of importance can be done to stop the spread of federal power,
let alone to restore something like the division of powers agreed upon by the
framers of the Constitution. The reason lies in human nature: men cannot be
relied upon voluntarily to abide by their agreements, including those upon
which their political order depends. There is an antagonism, amounting to an
incompatibility, between popular government — meaning government in
accordance with the will of the people — and the maintenance of limits on
the sphere of government.
Originalists thus face a particularly difficult task in trying to find a
way to give current effect to the original philosophy that animated the
adoption of the Commerce Clause and other limited federal powers. That
philosophy is federalism, which remains a constitutional value. It must be
remembered that federalism not only limits the federal government but also
gives it very powerful means to carry out the tasks assigned it. Accordingly,
Congress should carefully examine every piece of proposed legislation to
determine whether the state or federal government should address the particular
This Article examines the original purpose of the Commerce Clause,
assesses the evidence and scholarship concerning its original meaning, and
applies that understanding to several examples of modern legislative import.
This analysis shows that the Clause was crafted, among other reasons, to vest
the federal government with the ability to protect commerce between the States
from the discriminatory interference of self-interested States. As the Supreme
Court said in 1888, "the object of vesting in Congress the power to regulate
commerce with foreign nations and among the several States was to insure
uniformity of regulation against conflicting and discriminating state
The evidence further suggests that the text of the Commerce Clause was
designed to empower Congress to regulate trade between and among the States
— that is, the buying and selling of goods and services in interstate
commerce. The Commerce Clause does not seem to have granted Congress the power
directly to regulate manufacturing, labor, agriculture, or industry, although
the Court long ago expanded the Clause to cover such subjects. Congress likely
has the power to prohibit certain practices in interstate commerce, and some
measure of its power to regulate commerce is probably shared concurrently with
the States. Given the text of and purpose behind the Clause, Congress certainly
has the power, at a minimum, to displace state laws that discriminate against
interstate commerce, either explicitly or implicitly.
Harder questions arise when Congress uses its legitimate power over
commerce to impose conditions on the entry of a product into the stream of
commerce that may have the effect of regulating manufacture, labor, or
agriculture. It may be that Congress lacks the power ab initio to impose
such a regulation in the absence of any threat to interstate commerce, but that
enough inconsistent regulations by enough States can pose such a threat and
thus make the exercise of congressional power legitimate. Our regime gives rise
to difficult questions and is susceptible to Congressional abuse, but the
occasional difficulty in drawing lines does not mean that the enterprise should
This Article also surveys Supreme Court case law from the earliest
interpretation of the commerce power to the evolution of the modern formulation
during the New Deal, as well as the Court's recent attempt to reestablish the
principle that there are some limits to Congress's power under the Commerce
Clause. Unfortunately, because the Court did not have many opportunities to
examine the Clause until after the founding era, this survey contributes only a
little to the understanding of the original purpose and role of the Commerce
Clause. Even so, this history tracks the evolution of the Clause into its
modern form, examining how that form can perhaps be reconciled both with the
original purpose of the Clause and also applied to current federalism
Finally, the Article addresses four specific topic areas: tort reform,
environmental law, criminal law, and transportation regulation. This analysis
suggests that, in the absence of the guiding principle provided by the original
purpose of the Commerce Clause, Congress may be both too bold and too timid in
exercising the commerce power. Congress is often too bold in routinely invoking
the Commerce Clause to regulate manufacturing and industry in the absence of a
threat to interstate commerce. Yet Congress has also been too timid, in that it
has allowed certain impediments to interstate commerce to persist.
In the area of national tort reform, for example, Congress may
unnecessarily fear acting even though a legitimate exercise of the Commerce
Clause provides the necessary power — viz., where numerous and conflicting
state laws impair the free flow of commerce. Environmental law, on the other
hand, may seem a tempting arena for federal legislation because the problem
itself is at times interstate. Environmental issues that are national but not
commercial do not seem, as an original matter, appropriate for national
resolution under the commerce power. This does not mean that courts or
legislators should treat existing federal environmental legislation as
unconstitutional. Rather, existing statutes should be interpreted against a
background that respects federalism concerns to the extent possible.
With respect to criminal law, although modern Commerce Clause
jurisprudence often requires applying old standards to new situations, some
situations will never suitably fit a particular standard. Most crime was and is
local or noncommercial or both, and therefore Congress's ability to regulate
crime under the commerce power should be rather limited.
Finally, we consider the application of the commerce power to
transportation regulation, an area that is often both commercial and
interstate. We conclude that although the Commerce Clause may grant the federal
government broad power to regulate transportation, even that power is limited.
Federal regulation of transportation must still be tied to commercial and
interstate concerns. Moreover, when appropriating funds, federal mandates must
be directly linked to the purpose of that grant.
Although this Article is meant to address the scope of Congress's power
under the Commerce Clause and not preemption law, we note that having a sense
of where federal powers cease and exclusive state power starts has important
implications for preemption analysis as well. Knowing Congress's limits not
only constrains Congress's ability to invade the States' prerogatives, but is
also helpful in ensuring that Congress is accorded the full scope of its
Too often, when the question of federal preemption of State law arises,
those lacking any conception of limited federal power manifest an untamed fear
of federal overreaching. Without a principled method of limiting federal
action, they instead put a thumb on the scale against preemption. Such an approach may cloud the key question in any
preemption case — i.e., whether Congress has clearly exercised its
Those who have a clear conception that federal power has some limits are
often better able to interpret congressional acts without the same bias. The security that comes with the knowledge that there
are discernible limits to the federal government allows for a more honest
analysis, one which permits Congress to exercise those powers it legitimately
holds to their full and proper extent.
II. THE PROBLEM FACING THE CONTINENTAL CONGRESS UNDER THE
ARTICLES OF CONFEDERATION
The American Revolution dramatically altered the regulation of the
internal and external commerce of the colonies. Before the Declaration of
Independence, Britain regulated and monitored trade among the colonies. When
this regulation was eliminated, and no real power took its place under the
Articles, uncertainty and retaliatory trade barriers begin to spread among the
States. Many States passed laws interfering directly with commerce, including
port fees, taxes, and exclusionary trade laws.
The Revolution also harmed the entire economy. "Most obviously, the
break from England ruptured America's umbilical commercial connection to the
mother country, with special harm flowing from the loss of colonial subsidies
and preferences." Britain closed numerous
ports to American exports by force and by refusing to make treaties and, at the
same time, flooded the good-deprived States with British imports. The Northern States lost their primary trading
partner in London, and the entire West Indies market was cut off from further
The political effect of the increasing tension between various States
led some to fear that unregulated commercial warfare would turn to interstate
war. "[B]order quarrels" had already erupted, and more could be
expected. "It is not at all probable,"
Hamilton argued, that:
[the] unbridled spirit [of enterprise] would pay much respect to those
regulations of trade by which particular States might endeavor to secure
exclusive benefits to their own citizens. The infractions of these regulations,
on one side, the efforts to prevent and repel them, on the other, would
naturally lead to outrages, and these to reprisals and wars.
As the economy failed, States attempted to protect themselves. Some
state legislatures passed laws providing "debtor relief," a euphemism for
allowing in-state debtors to cancel their debts to out-of-state creditors. At
the same time, certain States began issuing unsupported paper money with which
debtors could "pay" their debts. The States
began dividing into debtor States and creditor States. The pro-debtor laws
— passed by States with more debtors — led to retaliation by States
that had a large number of creditors.
Some political commentators argued that when the economy recovered,
trade and peace among the States would be restored. Hamilton disagreed. To
those who claimed "that whether the States are united or disunited, there would
still be an intimate intercourse between them," Hamilton answered that "this
intercourse would be fettered, interrupted, and narrowed by a multiplicity of
causes." "A unity of commercial" interests,
Hamilton concluded, "can only result from a unity of government." Otherwise, Hamilton believed, the "competitions of
commerce" would always be a "fruitful source of contention." He stated:
The States less favorably circumstanced would be desirous of escaping
from the disadvantages of local situation, and of sharing in the advantages of
their more fortunate neighbors. Each State, or separate confederacy, would
pursue a system of commercial policy peculiar to itself. This would occasion
distinctions, preferences, and exclusions, which would beget discontent. The
habits of intercourse, on the basis of equal privileges, to which we have been
accustomed since the earliest settlement of the country, would give a keener
edge to those causes of discontent than they would naturally have independent
of this circumstance.
Congress under the Articles of Confederation was powerless to address
the problems of excessive importation, interstate squabbling, and piecemeal
foreign policy. "Devoid of power," the Continental Congress "could neither
prevent the excessive importations ... nor even raise from that excess a
contribution to the public revenue." The
Congress therefore lacked the power to prepare a coherent response to
interstate squabbles. According to Jack Rakove, "the most serious doubts about
the adequacy of the Articles of Confederation arose over the inability of
Congress to frame and implement satisfactory foreign policies." During the Ratification debates, Charles Pinckney
Frequent and unsuccessful attempts were made by Congress to obtain the
necessary powers. The States, too, individually attempted, by navigation acts
and other commercial provisions, to remedy the evil [of foreign trade
sanctions]. These, instead of correcting, served but to increased it; their
regulations interfered not only with each other, but, in almost every instance,
with treaties existing under the authority of the union.
Indeed, the problem was so grave that some have even taken the view that
the purpose of the Constitution was to vest complete authority in Congress over
commerce. Professor William Crosskey, for example, offered a novel and
expansive view of the purpose behind the Commerce Clause. To Crosskey, the period preceding the Constitutional
Convention was marked by widespread support for a generally empowered national
government, a government whose powers would greatly exceed the limited powers
extolled in The Federalist.
In fact, the deep post-Revolution depression did seem to lead some in
the New England States to desire complete federal regulation of commerce and
slavery. The southern States were wary of any national commercial regulation,
but wanted to expand their territory and were dependent on the northern
States's military power to do so. Crosskey argued that to get expansive federal
commercial power the North allowed the southern States increased representation
in the Congress. The South also was guaranteed that the slave trade would not
be altered by the national government, at least until a defined date.
One thing is certain: the Founders turned to a federal commerce power to
carve stability out of this commercial anarchy. Of the four "grand committees"
created at the Federal Convention of 1787, two dealt with commerce.
These committees drafted a clause which grants Congress power to regulate three
separate spheres of commerce — foreign, domestic, and Indian. Of course,
the foreign section of the clause had a different impetus than the domestic
section. Related historical events, however, precipitated combining the foreign
and domestic sections of the Commerce Clause.
In sum, the Clause was drafted to grant Congress the power to craft a
coherent national trade policy, to restore and maintain viable trade among the
States, and to prevent interstate war. For example, Madison gauged that:
[n]o one who recollects ... the period when the power over Commerce
was in the individual States, & separate attempts were made to ... regulate
it, needs be told that the attempts were not only abortive, but by
demonstrating the necessity of general & uniform regulations gave the
original impulse to the Constitutional reform which provided for such
III. THE LANGUAGE OF THE COMMERCE CLAUSE
What power does the Constitution grant to Congress with the Clause, "The
Congress shall have Power... To regulate Commerce ... among the several
States?" The language of the Clause offers
insight into the limits of that power.
Constitutional language, by necessity and design, varies in levels of
abstraction or generality. In the clause "No Person shall be a Representative
who shall not have attained to the age of twenty five Years," the age
requirement is concrete, and the meaning of "Representative" is not open to
serious question. Unfortunately, the key
words in the Commerce Clause — "regulate," and "commerce," "among the
several States" — are not similarly as concrete or self-explanatory.
This does not mean, of course, that these key words lack definition. The
meaning of more general concepts is often far more important than the meaning
of more concrete words. It is easier to define "chair" than it is to define
"justice," but a "chair" is not more important, nor does "justice" have so
loose a meaning as to have none at all.
In addition to its generality, the history of the Commerce Clause throws
another curve into the search for meaning: for a long time after the founding,
Congress exercised the commerce power so infrequently that its eventual
exercise may be less indicative of the founding conception of the Clause.
Ordinarily, the First Congress sheds light on the meaning of the Constitution
because the same men were involved in the Constitutional debates and the
Convention, and their intellectual and social contemporaries filled the ranks
of the Congress and the Supreme Court after ratification. What the men of the
First Congress took the Constitution to mean is illuminating not because we are
swayed by each man's individual understanding, but "because what the ratifiers
understood themselves to be enacting must be taken to be what the public of
that time would have understood the words to mean." Accordingly, "[b]y the time the First Congress
adjourned in 1791 the country had a much clearer idea of what the Constitution
meant than when that body had first met in 1789."
Except, it turns out, with respect to the Commerce Clause, which early
Congresses invoked sparingly, if at all. Naturally, this meant few
opportunities for judicial pronouncements on the subject. "Not until 1824 by
the decision of the Supreme Court in Gibbons v. Ogden was a clear
indication given of the extent of the power granted, and not until the
Constitution was nearly a hundred years old did Congress begin the exercise of
the authority granted it to regulate, affirmatively, commerce between the
States." Rather, "[b]efore  the
commercial power granted to the federal government had been employed only by
way of preventing an interference with interstate and foreign commerce by the
States." Thus, Supreme Court jurisprudence on
the Commerce Clause is both late in time after the founding and relatively
Despite this history, coming to an original understanding of the
Commerce Clause is possible and, even more, necessary. Difficult as it may be
to give a succinct definition of the commerce power, it is often quite easy to
identify territory clearly falling outside the power. It is also quite possible
to identify many areas falling within. In particular, documents from the
founding era, most notably The Federalist and records of the
ratification conventions, provide insight into the definition and use of the
words "commerce," "among the several States," and "to regulate."
1. What "Commerce" Is
"Commerce" was defined in the early years of the Union as trade,
intercourse, navigation, traffic, and transportation for profit. "Navigation,"
for example, although perhaps more immediately grasped by the modern mind than
what is meant by "traffic," is less straightforward than might be
imagined.[34 ]Still, when "commerce" is
repeatedly described in similar terms by those discussing the national
regulation of commerce, a clearer view of the word's scope takes shape. In
short, "commerce" means the activities of buying and selling that come after
production and before the goods come to rest.
Professor Crosskey — whose analysis excludes the great number of
ratification documents that identify "commerce" with trade — interpreted
"commerce" far more broadly to mean "all gainful activity." Crosskey acknowledged that "[i]n most senses in
which 'commerce' was used in the eighteenth century, the word 'trade' was also
used." "The exception," according to
Crosskey, "was the broadest of the then current uses ... in which the word
covered any or all of the manifold activities that men carry on together," and
"almost always meant 'all kinds of business.' or the gainful activity of the
The language of the day supports the narrower interpretation, however.
In 1773, Samuel Johnson's Dictionary of the English Language defined "commerce"
as "Intercour[s]e; exchange of one thing for another; interchange of any thing;
trade; traffick." Other contemporaneous
dictionaries described commerce similarly, as "[e]xchange of one thing for
"Trade" seems to be the most common substitute. Professor Randy Barnett
has tallied each appearance of "commerce" both in Madison's notes on the
Constitution Convention and in The Federalist. Barnett concludes that "[i]n none of the sixty-three
appearances of the term 'commerce' in The Federalist Papers is it ever
used to refer unambiguously to any activity beyond trade or exchange." He similarly concludes that in Madison's notes every
non-foreign reference to "commerce" could be substituted with either "trade" or
"exchange" "with the apparent meaning of the statement preserved."
Indeed, in 1828, Madison wrote a letter in which he stated that "[t]he
Constitution vests in Congress expressly...'the power to regulate
trade.'" Throughout the letter, Madison
continues to replace "commerce" with "trade:" "a power to regulate trade;" "the
power to regulate trade with foreign nations;" "[t]he meaning of the Phrase 'to
regulate trade;'" and "regulations of trade," are but a few examples.
The state ratifying conventions also include numerous instances of
"commerce" being used such that "trade" could easily be substituted. To pick one of many examples, a participant in the
North Carolina convention referred to "commerce" as "the nurse of both"
agriculture and manufacturing, because "[t]he merchant furnishes the planter
with such articles as he cannot manufacture himself, and finds him a market for
2. What "Commerce" Is Not
History provides us with more material on the subject of what "commerce"
is not than on what "commerce" is. This is unsurprising; the
Commerce Clause was not drafted to cause confusion. Its drafters employed plain
language that could reasonably be expected to be understood at the time. It is
therefore natural that most of the discussion should take place at the margins
— identifying those areas that could be "commerce" but are not — and
that very little of the discussion centers on a basic definition of a word
Early American writings distinguish "commerce" from the class of
subjects to which it is separate but connected in two ways: either by a direct
discussion of what is excluded from commerce, or by implication. Alexander
Hamilton's writings in The Federalist Papers provide many of these
definitions by implication. Hamilton often included "commerce" in a list of
concepts which are similar in one way (activities critical to the success of
the nation, for instance), but distinct enough to call for separate
identification, as in "the state of commerce, of arts, of industry."
These early discussions of the nature of the Union suggest that
"commerce" does not include manufacturing, agriculture, labor, or industry. In
short, "commerce" does not seem to have been used during the founding era to
refer to those acts that precede the act of trade. Interstate commerce
seems to refer to interstate trade — that is, commerce is "intercourse for
the purposes of trade in any and all its forms, including the transportation,
purchase, sale, and exchange of commodities between the ... citizens of
a. Manufacturing, Industry, and Labor
Trade among the States and with foreign countries was vigorous even in
the earliest years of the nation. The creation of goods to be transported in
interstate commerce was a prominent concern of early American industry and
agriculture: commerce, said Alexander Hamilton, is "the faithful handmaid of
labor and industry."
Writing almost a century later, expounding on the difference between
commerce and industry, Justice Joseph Lamar, for the Supreme Court, said:
No distinction is more popular to the common mind, or more clearly
expressed in economic and political literature, than that between manufactures
and commerce. Manufacture is transformation — the fashioning of raw
materials into a change of form for use. The functions of commerce are
different. The buying and selling and the transportation incidental
thereto constitute commerce; and the regulation of commerce in the
constitutional sense embraces the regulation at least of such
transportation.... If it be held that the term includes the regulation of all
such manufactures as are intended to be the subject of commercial transactions
in the future, it is impossible to deny that it would also include all
productive industries that contemplate the same thing. The result would be that
Congress would be invested, to the exclusion of the States, with the power to
regulate, not only manufactures, but also agriculture, horticulture, stock
raising, domestic fisheries, mining — in short, every branch of human
That the Commerce Clause most likely gave Congress the power to regulate
"buying and selling" of goods in interstate commerce but not production is
supported by other contemporary definitions of "commerce" as well as the
purpose behind the Clause.
The distinction between commerce and the production of goods (either
through industry or agriculture) that preceded commerce was periodically and
consistently remarked upon by the Supreme Court. "[W]henever a commodity has
begun to move as an article of trade from one State to another," then, the
Court held, "commerce in that commodity between the States has
commenced." The famous formulation of this
idea is Justice Fuller's: "Commerce succeeds to manufacture, and is not a part
That the drafters chose "commerce" in lieu of a more sweeping term
reflects the Framers' vision of the Commerce Clause; it was to keep the States
from treating one another as hostile foreign powers. Such a limited function
would not have been furthered by giving Congress power to regulate the
pre-trade production of goods. Alexander Hamilton contended that "[t]he
importance of the Union, in a commercial light, is one of those points about
which there is least room to entertain a difference of opinion, and which has,
in fact, commanded the most general assent of men who have any acquaintance
with the subject." Without unified national
intervention, Hamilton concluded in a different Federalist paper, States
would ignore one another's trade regulations in the "endeavor to secure
exclusive benefits to their own citizens." As
noted earlier, Hamilton warned that the result of these infractions would be
"on one side, the efforts to prevent and repel them, on the other, would
naturally lead to outrages, and these to reprisals and wars." It was much less likely that the manufacturing or
agricultural decisions of a State would cause such strife. Thus, understanding "commerce" to include trade but
not manufacture or agriculture is consistent with what is known about the
purpose of the Commerce Clause.
Several scholars have suggested that the generation of the Framers would
have assumed and accepted that the power to regulate commerce included the
power to do so for the purpose of encouraging manufacturing. At least Madison would have concurred: "The power"
to regulate commerce, he wrote "embrac[es] the object of encouraging
manufactures," and this "use of the power by Cong[ress] accords with the
intention and expectation of the States in transferring the power over trade
from themselves to" the federal government.
This seems reasonable enough as far as it goes. The Framers no doubt hoped that
Congress's regulation of interstate commerce would improve the entire economy
as well as the political relations between the States. This does not
necessarily mean, however, that the definition of "commerce" would have allowed
direct regulation of manufacture or agriculture preceding commerce.
Richard Epstein has argued that "commerce" must mean "trade" to the
exclusion of "manufactures." Otherwise, he argues, it would have been
unnecessarily duplicative to have specified the regulation of commerce with
foreign nations, among the States, and with the Indian tribes. "What possible sense does it make as a matter of
ordinary English to say that Congress can regulate 'manufacturing with foreign
nations, or with Indian tribes,' or for that matter 'manufacturing among the
several States,' when the particular fabrication or production takes place in
one state, even with goods purchased from another?" None, if "commerce" meant "manufactures." But even
those who take an expansive view of "commerce" agree that it must include
Professor Epstein's argument highlights that the acts of trade and
manufacturing are fundamentally different; different enough, perhaps, that one
should be skeptical in the absence of strong evidence to the contrary that a
clause including both would bear any resemblance to the Commerce Clause. More
persuasively, if the members of the Constitutional Convention had wished to
invest the national government with broad powers to regulate all forms of
economic activity, they probably would not have used a word that often referred
Similarly, Hamilton referred in The Federalist to agriculture and
commerce as related but separate pursuits:
The several States are in various degrees addicted to agriculture
and commerce. In most, if not all of them, agriculture is predominant.
In a few of them, however, commerce nearly divides its empire, and in most of
them has a considerable share of influence.
Hamilton further argued that, to hold "knowledge of local
circumstances," a person had to have knowledge of the various pursuits of a
state, "of its agriculture, commerce, manufactures, with the nature of its
products and consumptions, [and] with the different degrees and kinds of its
wealth, property, and industry."
Because "agriculture" was defined at the time as "[t]he art of
cultivating the ground; tillage; husbandry, as distinct from pasturage," it
would not have been considered a form of commerce, trade, sale, or
intercourse. Indeed, said Hamilton, "between
agriculture and commerce," there existed a "rivalship." Hamilton conceived of the power to regulate commerce
as "national," whereas "the supervision of agriculture and of other concerns of
a similar nature... are proper to be provided for by local legislation."
Still, Hamilton identified the "three great [presumably distinct]
objects of government" as "agriculture, commerce and revenue." In his notes on the Constitutional Convention,
Madison revealed a similar view in an ultimately unsuccessfully proposal to
grant the new Congress the power "[t]o establish public institutions, rewards,
and immunities for the promotion of agriculture, commerce, trades and
B. "To regulate"
Two issues about the meaning of "to regulate" arose: (1) Was the power
exclusive of state exercise of similar power, and (2) Did the power include the
power to prohibit or destroy? The evidence suggests that there was probably
general agreement that Congress's power to regulate interstate commerce
included the power to prohibit. It remained unsettled whether Congress's power
to regulate commerce was an exclusive national power and, if so, as to what
areas of commerce it was exclusive.
Samuel Johnson's dictionary defined "to regulate" as "1. To adjust by
rule or method ... 2. To direct." This
definition is supported by Chief Justice Marshall's noted description of the
power to regulate as the power "to prescribe the rule by which commerce is to
be governed." Chief Justice Melville Fuller
later reiterated a similar formulation: "The power to regulate commerce is the
power to prescribe the rule by which commerce shall be governed." This formulation suggests that the aim of
"regulation" must be limited to the governance of commerce, although Supreme
Court jurisprudence is not uniform on this topic.
1. The Power to Prohibit
The power to regulate could include the power to prohibit, but the
meaningful question may be the power to prohibit what. Professor Randy
Barnett argues that because the definitions of "regulate" and "prohibit"
"sharply differ," and because "to regulate" appears in various forms seven
additional times in the Constitution, regulation probably does not include
prohibition. In support of this argument, he
cites Samuel Johnson's dictionary, which defines "to prohibit" as "1. To
forbid; to interdict by authority ... 2. To debar; to hinder."
But Johnson's definition of regulate does not necessarily exclude
prohibition. If, for example, the government were to regulate the flow of mail
from one State to another, that regulation might include a prohibition on one
State holding the mail for excessive fees. Regulation of a larger activity, in
other words, may logically include the prohibition of lesser included
It does not, therefore, seem logically necessary, given Johnson's
definitions of "to regulate" and "to prohibit," that the power to regulate
interstate commerce could not also include the power to prohibit certain
manners, modes, or impediments to commerce. Moreover, it was understood that
future Congresses might have an interest in limiting or prohibiting foreign
commerce in order to advance foreign policy or budding American industry. The
power granted to Congress to regulate foreign commerce thus unquestionably
included the power to prohibit some commerce through the imposition of tariffs
or preferential trade policies.
Because the purposes behind the foreign and interstate segments of the
Clause were so different, some have argued that the word "regulate" entailed a
subtly different meaning with respect to each sphere. That may be, but it is unlikely that the same word
— "to regulate" — includes the power to prohibit when modifying
"foreign commerce" but not when modifying "commerce among the several States."
That said, Congress's power to prohibit commerce among the States may be
limited by the purpose of the Clause — so that Congress is limited to
eliminating modes of trade that impede interstate commerce.
2. An Exclusive Power to Regulate?
A second key "regulation" question is whether the Framers intended the
federal power to regulate commerce to be exclusive of state power to do so.
Some, such as Professor Laurence Tribe, have been quick to take Gibbons v.
Ogden for that proposition. In Gibbons, the Court was faced with a
dispute between two steamship owners, both of whom wanted to travel between New
York and New Jersey. New York law granted an exclusive right to the travelway
to one person; all others could make the journey only with his permission. New
Jersey returned the favor by passing a law that would allow New Jersey citizens
to sue in a New York court under the New York law but to have treble damages
enforced by a New Jersey court. The Court held that a federal statute licensing
ships was a legitimate exercise of the commerce power that preempted the
conflicting state laws.
Close examination of the case reveals that Tribe's reading is too broad.
At most, as one early commentator claimed, the "precise point actually decided
in Gibbons v. Ogden was that the Federal authority over foreign and
interstate commerce is exclusive in so far as that commerce is carried on by
water." "That the Federal power was
exclusive seems ... to have had little relation to monopolies of
transportation, and no relation whatever to land transportation and
ferriage." Moreover, because the New York
statute struck down in Gibbons conflicted with a federal statute, the
Court did not have to decide if the power to regulate commerce was exclusive in
the face of inaction by the federal government.
The Supreme Court's other rulings on whether the power is exclusive or
concurrent do not resolve the issue; indeed, they are inconsistent. The Court
in Brown v. Maryland, held the Clause
to grant exclusive federal authority. Two years later, in Willson v. Black
Bird Creek Marsh Co., Chief Justice
Marshall, confusing those who had read Gibbons to declare an exclusive
power, determined that the States had concurrent power to regulate
Eight years later, in New York v. Miln, the Court interpreted a law requiring ships entering
New York to provide passenger lists and bonds for immigrants to be an exercise
of the police power to protect the health and wealth of New York's citizens.
The Court stated:
We shall not enter into any examination of the question whether the
power to regulate commerce be or be not exclusive of the states, because the
opinion which we have formed renders it unnecessary: in other words, we are of
opinion that the act is not a regulation of commerce, but of police; and that
being thus considered, it was passed in the exercise of a power which
rightfully belonged to the states.
Miln thus seems to answer the question of exclusivity to some
extent. In Miln, the Court was willing to permit a State to regulate
interstate commerce in the absence of congressional exercise of the commerce
power because the state regulation rested on other (police power) grounds. The
best conclusion to be drawn from this and the other cases, however, is that the
question of the exclusivity of the Federal commerce power had not been
definitively answered. Today, the question of concurrency has been resolved;
some of Congress's power may be exclusive, but much of it is not. In sum, the text of the Commerce Clause seems to
have given Congress the power to regulate, and, if necessary, prohibit, state
laws that impinged on the buying and selling of goods in commerce. Congress
lacked the authority, however, to use this power over interstate commerce to
regulate manufacture, labor, agriculture, or industry. As demonstrated below,
the Supreme Court essentially took this view for more than the first hundred
years of the Republic.
IV. THE SUPREME COURT'S INDETERMINATE JURISPRUDENCE
As noted, the early Congresses relied upon the Clause sparingly. Because
Congress so rarely invoked the Commerce power, the Supreme Court had scant
opportunity to evaluate the scope and meaning of the Clause in the first
hundred years of the Union, other than in the few cases discussed above. In
fact, the trusted Prentice and Egan treatise on the Commerce Clause declares
that "such a history as this can, it is believed, find its parallel in no other
branch of constitutional law."
A brief history of the evolution of the commerce power under Supreme
Court jurisprudence helps identify how the original understanding has been
warped and was eventually abandoned.
A. The Marshall Court Speaks
As the history of the Commerce Clause in the early years of the Union
would suggest, the Marshall Court did not address the Clause very often. In
fact, only one Commerce Clause case and one case concerning the Necessary and
Proper Clause bear discussion. Both reveal a limited conception of Congress's
powers, in keeping with the original understanding.
As discussed above, in Gibbons v. Ogden, Chief Justice Marshall
delivered an influential "first" ruling and rumination — a good bit of it
dictum — on the Commerce Clause. The
question before the Court was whether "commerce" included navigation. The Court
concluded it did. In so doing, Justice Marshall revealed that he did not view
the Gibbons dispute as a close case. "The word [commerce],'' he
declared, "comprehends, and has always been understood to comprehend,
navigation within its meaning; and a power to regulate navigation is as
expressly granted as if that term had been added to the word
For a variety of reasons, including the length of time between
ratification and the decision as well as Marshall's biases, this long and often
unnecessary foray into the scope of the Commerce Clause seems problematic as a
reliable guide to the original understanding of the scope of the commerce
power. There is a particular danger in
focusing on Marshall's dicta without keeping particular turns of phrase in
context. Specifically, Marshall's statement
that "[the commerce] power, like all others vested in Congress, is complete in
itself, may be exercised to its utmost extent, and acknowledges no limitations
other than are prescribed in the Constitution," seems to muddle the
issue. The sentence does not attempt to
describe the content of the commerce power — intrastate,
interstate, direct, or indirect. Rather, it simply suggests that the power,
whatever it entails, is complete.
By examining piecemeal certain phrases in Gibbons, some law
professors, such as Laurence Tribe, have concluded that "Marshall indicated
that... congressional power to regulate 'commercial intercourse' extended to
all commercial activity having any interstate impact — however,
indirect." Upon careful reading, the
"elaborate preliminary discussion," upon which Professor Tribe rests this
conclusion, does not address the scope of the power over "indirect" commercial
activity at all. Instead, Chief Justice
Marshall is addressing whether the Commerce Clause should be read nonsensically
so as to apply only to "the narrow boundary between the two states."
In fact, Marshall's own discussion suggests that Tribe's reading is
incorrect and that Marshall did not intend the Clause to reach activity with an
indirect effect on interstate commerce:
It is not intended to say that [the discussion thus far] comprehend[s
such] commerce, which is completely internal, which is carried on between man
and man in a State, or between different parts of the same State, and which
does not extend to or affect other States....
Comprehensive as the word "among" is, it may very properly be
restricted to that commerce which concerns more states than one. The phrase is
not one which would probably have been selected to indicate the completely
interior traffic of a state, because it is not an apt phrase for that purpose;
and the enumeration of the particular classes of commerce to which the power
was to be extended, would not have been made, had the intention been to extend
the power to every description.
Accordingly, Gibbons suggests that, although Congress can
regulate navigation between States, purely intrastate commerce is considered
beyond its reach.
The other relevant case decided during Marshall's tenure was
McCulloch v. Maryland, in which the
Court considered whether the establishment of a national bank was "necessary"
to fulfill Congress's powers to coin and regulate the value of money.McCulloch did not address the Commerce
Clause, but did interpret the meaning and scope of the Necessary and Proper
Clause, which the Court would later use to expand the reach of the commerce
The Necessary and Proper Clause should not substantially alter the
analysis of the scope of the commerce power.
The Clause provides Congress with the power "[t]o make all Laws which shall be
necessary and proper for the carrying into Execution the foregoing Powers, and
all other Powers vested by this Constitution in the Government of the United
States, or in any Department or Officer thereof." The debate about whether the Clause provides a
power of execution — that "Congress shall not fail because it lacks the
means of implementation" — or a substantive increase in congressional
powers need not, and cannot, be fully engaged here. Nonetheless, those who argue for the latter must
answer why the Founders would have gone to the trouble of enumerating and
excluding powers, only to undo their handiwork in one clause.
In McCulloch, Chief Justice Marshall warned that statutes passed
as necessary and proper to the execution of a granted power must still "consist
with the letter and spirit of the constitution." This requirement includes respect for the
Constitution's enumerated powers. "Should
Congress, in the execution of its powers, adopt measures which are prohibited
by the constitution... [or] pass laws for the accomplishment of objects not
entrusted to the government," the Court further warned, such laws would be
Given this understanding, the Necessary and Proper Clause cannot be used
to expand the definitions of "commerce" or "regulate." The Clause provides for
the "Execution of the foregoing Powers," including the power to regulate
commerce. Chief Justice Marshall rightly
read the "necessary and proper" language as a "limitation on the means
which may be used" to execute the enumerated powers, which does not alter or
extend "the powers which are conferred."
B. Relative Quiet: 1836-1888
Six decades passed after Gibbons, with few cases addressing the
congressional exercise of the commerce power. The Court had more occasions
during this period to consider the so-called dormant commerce clause. The
question facing the Court in these cases was whether a State could legislate in
an area where the federal government could legislate under the commerce power
but had not done so.
One of the most important dormant commerce clause cases was the
aforementioned Kidd v. Pearson.Kidd is important because, although the Court upheld Iowa's ban on the
manufacture of alcohol within the State against a dormant commerce clause
challenge, it recognized Congress's broad powers under the Commerce Clause over
the sale of goods in interstate commerce. This articulation, during an era when
the Court still tried to adhere to the Constitution's original understanding,
highlights that States have considerable power reserved to them, but that the
Commerce Clause gives Congress considerable authority over goods once they have
entered the stream of interstate commerce.
The Court had earlier condoned state legislation pursuant to the States'
police power or to "local" power over intrastate commerce. As discussed above, in Kidd, the Court
acknowledged the principle of cases like Miln and Cooley, but
identified a broad role for the federal government as well, saying that: "The
buying and selling and the transportation incidental thereto constitute
commerce; and the regulation of commerce in the constitutional sense embraces
the regulation at least of such transportation."
By using this definition, the Court was also able to align the
local/national distinction it had laid out in Cooley with the interstate
nature of most commerce, as well as the intrastate nature of pre-trade
commercial activity. In Cooley, the Court had upheld a law that affected
interstate commerce by regulating the piloting of ships in a state harbor. The
Court reasoned that the state police power extended to all pre-trade production
to the exclusion of the federal commerce power because such activities were
"local" "in their nature." A "local"
activity, it said, becomes "national" "whenever a commodity has begun to move
as an article of trade from one State to another."
In addition to these dormant commerce clause cases, in 1870, the Court
struck down a federal law criminalizing the sale of certain dangerous oils as
an exercise of the police power reserved to the States' internal
affairs. During this period the Court also
held that the Commerce Clause granted Congress the power to regulate "all that
portion of commerce... between the States which consists in the transportation,
purchase, sale, and exchange of commodities."
In short, by the end of the nineteenth century, the Court had clarified
three key aspects of the commerce power. First, although the line between state
and federal commerce powers remained (and still remains) fuzzy, the Court had
recognized — implicitly, if not explicitly — that at least some of
the power was concurrent. Second, as evidenced by Kidd and Miln,
the state regulatory power over intrastate commerce, even with incidental
effects on interstate commerce, was broad. Nonetheless, States would not be
permitted to invade the federal power. Finally, the term "commerce" was
understood to assign to Congress power over the "buying and selling" of goods
in interstate commerce while restricting the regulation of pre-commerce
production to the local control of the States.
C. The Turning Point: The Pre-New Deal
During the progressive era, Congress began to regulate in novel areas
for novel reasons. Some cases from this period, the last in 1936, are
relatively straightforward decisions in which the Court maintained the
distinction between commerce and manufacturing or production. The famous
formulation of this distinction is Justice Fuller's: "Commerce succeeds to
manufacture, and is not a part of it." But
these decisions, as well as a second, more complex line of cases raised
"questions [that] remain intractable because both the motive and the effect
of congressional regulation concerned matters that were themselves not within
the 'stream of commerce,' at least not as the phrase was understood before
1937." The seminal instance of this second
line of cases is Champion v. Ames,
which is discussed below.
The first group of cases describes "commerce" in keeping with the
original understanding. As late as 1936, in Carter v. Carter Coal
Co. the Supreme Court described
"commerce" as "the equivalent of the phrase 'intercourse for the purposes of
trade.'" Relying upon this definition,
the Court concluded that the Commerce Clause did not convey the power to
regulate the production of coal before the coal has entered into commerce.
According to the Court, "[m]ining brings [coal,] the subject matter of
commerce[,] into existence .... Commerce disposes of it."
The second line of cases is represented by Champion, in which the
Court upheld a federal prohibition on the shipment of lottery tickets across
state lines. The Court confined its analysis
to whether the lottery tickets were objects of interstate commerce, and
logically concluded that they were. What the Court avoided was that the lottery
tickets were not being regulated in their capacity as objects of
interstate commerce, but as objects encouraging immorality — which they
could do just as easily intrastate as interstate. "In one sense, the Congress
stayed within the commerce clause because Chief Justice Marshall told us that
the commerce power is 'plenary' over everything that comes within its specified
limits." However, this permissive attitude
toward using an enumerated power to infringe on the police power, an area
reserved to the States, seems inconsistent with the Constitution's
structure. Later cases expanded on this
loose measure of Champion:
The principle established ... is the simple one ... that Congress has
the power over transportation "among the several States"; that the power is
complete in itself, and that Congress, as an incident to it, may adopt not only
the means necessary but convenient to its exercise, and the means may have the
quality of police regulations.
Where Champion and its progeny may have gone wrong was not by
allowing Congress to regulate articles in interstate commerce, which the
Constitution's text seems to allow. Rather, the Court blessed congressional
regulation of interstate commerce for reasons that have nothing to do with
preserving the free flow of goods and services across state lines. Put another
way, Congress seems to have been leveraging its legitimate power to regulate to
an area beyond the scope of its delegated power. Distinguishing those
circumstances from the legitimate exercise of power may be difficult, but there
is an obligation to try.
D. The New Deal And Beyond
Three New Deal cases expanded the purpose for which the commerce power
could be exercised and altered the previous "requirement" that the object
regulated be an object of interstate commerce. Beginning in 1937, the Court
allowed Congress to regulate acts that have a "substantial effect" on
interstate commerce. In NLRB v. Jones & Laughlin Steel Corp., the Court considered the constitutionality of the
Wagner Act. It decided that "the fact that the employees here concerned were
engaged in production is not determinative," because the test is "the effect
upon interstate commerce of the labor practice involved."
Four years later, the Court in United States v. Darby
overturned Dagenhart and upheld an application of the Fair Labor
Standards Act to a manufacturer of lumber, prohibiting interstate shipment of
products manufactured by employers who did not comply with the Act's wage and
hours requirements. "[W]hile manufacture is not of itself interstate commerce,"
the Court reaffirmed Congress's ability to regulate noncommercial activity by
regulating the shipping of goods in commerce.
Wickard v. Filburn is
customarily considered the true turning point in the great expansion of the
commerce power. But as the preceding jurisprudential history reveals, much of
the heavy lifting had been accomplished by 1942. Wickard has memorable
facts to recommend its position of popularity — the single wheat farmer in
that case could not grow some wheat for his family's consumption without
penalty because, in the aggregate, this behavior would interfere with the
interstate wheat market. But the legal analysis in the case — the act may
be production, it may be "local," but "it may still, whatever its nature, be
reached by Congress if it exerts a substantial economic effect on interstate
commerce," — should have been
Not much changed in Commerce Clause jurisprudence over the next five
decades. Then, in 1995, the Court struck down federal legislation, the Gun-Free
School Zones Act, as exceeding Congress's
power to regulate commerce. More recently,
the Court held unconstitutional the provision of the Violence Against Women
Act that created a federal civil remedy for
the victims of a crime motivated at least in part by animosity toward
women. The Court reiterated its judgment
from Lopez that the Act was "a criminal statute that by its terms has
nothing to do with 'commerce' or any sort of economic enterprise, however
broadly one might define those terms." This
judgment did not end the Court's analysis, however, and the Court next applied
the Wickard test for "substantial effects" on interstate
commerce. Even applying the more expansive
"substantial effects" test, the Court struck down the law, reasoning that
Congress did not have the professed power under the Commerce Clause.
Despite some caterwauling to the contrary, this recent "revival" of the
Commerce Clause as a limited power was not revolutionary. Neither of these
statutes regulated conduct that was either interstate or economic in nature.
Neither law logically required uniformity across the States. Although the Court
had not invalidated a federal statute on these grounds in many years, the Court
need not have, and did not, overrule the New Deal cases to reach its
Recall for a moment, after this condensed journey through the case law,
the actual language of the Clause and its purpose. The Clause grants Congress
the power to make interstate trade regular, to smooth out the burdensome
discrepancies of interstate buying and selling. The Court's interpretation has
strayed from the original understanding of the Clause. The extent of this
wandering may be questioned, but the essential fact is not debatable. The
question then is how to recover the original understanding and how to respect
it today to the extent feasible, given the state of our economy and the
V. APPLYING THE ORIGINAL UNDERSTANDING TO CURRENT
The commerce power is an affirmative grant of power to Congress. Even
though Congress may overstep the original boundaries of that power, there is an
"opposite danger of overreacting to the exercise of national power. The fact
that the pendulum has swung too far in the direction of centralization should
not produce a knee-jerk hostility to federal power. In many circumstances,
federal regulation is necessary and constitutionally legitimate."
In identifying those circumstances, courts and legislators alike need to
keep in mind the purposes of the Clause, as well as the nature of the current
problem. "The commerce power was established by men who did not foresee the
scope and intricate interdependence of today's economic activities. But that
does not make it wrong for judges to forbid States the power to impose
burdensome regulations ... ," When the world
has changed but the underlying constitutional principle remains, the task for
those "in this generation [is] to discern how the framers' values, defined in
the context of the world they knew, apply to the world we know." The world we know includes the long-standing
jurisprudence on the commerce power because "[w]hen there is a known principle
to be explicated the evolution of a doctrine is inevitable."
This measure of practicality is required because the reality is that the
New Deal is not going to be undone, certainly not by the stroke of a judicial
pen. That does not mean, however, that courts should not approach new problems
(i.e., legislation), as in Lopez and Morrison, by examining the
original understanding and using it as a touchstone in deciding the case. It
may be possible for courts to begin moving back in the direction of the
original understanding, without necessarily upending decades of case law on
which expectations have settled.
A. The Current Problem
During the founding era, States were likely to view one another as
rivals — not quite as foreign governments, but still as potential military
and commercial threats. That the state of our Union has fundamentally shifted
away from this direct rivalry is doubtless. States nonetheless remain capable
of and responsible for pursuing their specific interests — sometimes to
the exclusion or detriment of other States or the nation as a whole. State
laws, state regulations, and state courts are all potential arenas for both
intentional and inadvertent clashes among the States.
State legislatures, after all, perform their duties by protecting their
own citizens and by encouraging the prosperity of their citizens and their
state. Often, States do this by pursuing their own regulatory regimes. Although
each regime may be independently justified, the resulting diversity of
potentially conflicting regulations can substantially impede firms engaged in
States, moreover, have divergent interests stemming from varying
characteristics. A centrally located state, for example, may enact heavier
commercial trucking fees than a remote State seeking to increase "imports." A
State that derives much of its prosperity from production may look askance at
other States' laws that make tort recovery easier, and vice versa.
Each State may rightly view the actions of other States as a form of
implicit discrimination. A seemingly neutral rule about business incorporation
or damage awards may operate to shift wealth from one type of State to another.
States may not be aware that their choice of commercial law is interfering with
the flow of commerce among the States, raising barriers to the sale of products
in some States and to the production those products in others. Even if aware of
such interference, each State's wish to alter preferential laws that have
gotten out of hand may be frustrated by pragmatic state legislatures that are
unwilling to act if all other States retain their preferential laws.
Similarly, state courts will often apply jurisdictional rules to
adjudicate those cases in which the court determines that the State has a
strong interest. The legal test for exercising personal jurisdiction, and for
retaining a case under the doctrine of forum non convienens, for
example, requires the court to consider the interest of the State and the value
of jurisdiction to each party, one of whom will be a citizen of the
In addition, juries are often in a position to find guilt or liability
against an out-of-state defendant, in favor of an in-state plaintiff. Indeed,
the fear that state court systems would not always be able to apply the law
without favoritism toward its own citizens was an impetus for the creation of
federal diversity jurisdiction; in a more neutral federal court, each party
would stand as neither an insider nor an outsider. State courts, on the other
hand, might fail to "administer justice as impartially as those of the
This potential discrimination could raise barriers to interstate
commerce by imposing detrimental de facto legal requirements on products and
services sold within the state, even if the product or service originated in
another state. In so doing, States may project their legal standards
outside of their own jurisdiction and interfere with the functioning of
a nationwide market. The effect of this combined "discrimination" by each State
against the others, left unchecked, is similar in kind, if not degree, to the
problems that plagued the States and the nation under the Articles of
State tort law today is different in kind from the state tort law known
to the generation of the Framers. The present tort system poses dangers to
interstate commerce not unlike those faced under the Articles of Confederation.
Even if Congress would not, in 1789, have had the power to displace state tort
law, the nature of the problem has changed so dramatically as to bring the
problem within the scope of the power granted to Congress. Accordingly,
proposals, such as placing limits or caps on punitive damages, or eliminating
joint or strict liability, which may once have been clearly understood as
beyond Congress's power, may now be constitutionally appropriate.
The threat state tort law presents to the national flow of goods and
services has been well-documented. State tort law is approaching uniformity
across States, but not in the sense admired by the drafters of the Commerce
Clause. At least two realities of the current system allow one or a few States
to set rules nationwide: (1) plaintiffs can often choose to sue national
corporations in the jurisdiction most favorable to a large recovery; and (2)
national firms engaged in interstate commerce must, at a minimum, conform to
the standards set by the strictest state. A lack of congressional action allows
standards to be set by a particular state instead of by the one government in
which all States have a voice. This turns the intended meaning of Commerce
Clause upside down, allowing a single State to set the national
The national movement of goods among the States makes it virtually
impossible for a manufacturer to be able to keep its goods from being sold in
each state. Accordingly, the harm each State can do with its tort laws to
benefit its own citizens can affect the flow of goods in all States, possibly
making some goods disappear from the market altogether. Legislation removing
otherwise intractable barriers to interstate commerce and competition comes
within the domestic portion of the Commerce Clause: "[I]t is a matter of public
history that the object of vesting in Congress the power to regulate commerce
with foreign nations and among the several States was to insure uniformity of
regulation against conflicting and discriminating state
This is particularly true if the tort systems of certain States operate
to discriminate in favor of their citizens, explicitly or implicitly. All
States have consumers and sellers, but some States have very few manufacturers,
and thus may adopt rules which discriminate against primarily out-of-state
manufacturers. Discriminatory or preferential state laws can thus lead to a tug
of war, played out in the state court system, between dissatisfied consumers
and manufacturers — a war which can take on monumental proportions when a
national class action is certified. Even if it is not discrimination in that
sense, a wilderness of different state tort standards impedes interstate
commerce by requiring either a whole variety of a single product or a uniform
standard set by the strictest state. Congress can use its power under the
Commerce Clause to address this situation.
Some States may not necessarily seek to aid either the interest of
manufacturers or of consumers at the expense of the other, but may still adopt
rules — such as leaving the designation of punitive damages to the jury's
unconstrained discretion — which have the effect of benefiting that
state's consumers, while spreading the cost of high awards among all consumers
of the goods nationally. Even if a State may have manufacturers who are being
hurt by high punitive damages awards, its incentive to cap or reduce its own
awards may be limited by the fact that the State would be harming its own
consumers, who might win lower awards, without necessarily helping
manufacturers, who would be subject to high punitive damage awards in other
The Commerce Clause was adopted, in part, to address this kind of
collective action problem. Each State's consumers would always have benefited
from free trade among the States, but the manufacturer in any one State would
be harmed if its goods were taxed when going into other States and its
competitors's goods were not taxed coming into its own. As Hamilton explained,
part of the reason for the Commerce Clause was to give Congress the power to
solve this dilemma:
The opportunities which some States would have of rendering other
tributary to them by commercial regulations would be impatiently submitted to
by the tributary States. The relative situation of New York, Connecticut, and
New Jersey would afford an example of this kind. New York, from the necessities
of revenue, must lay duties on her importations. A great part of these duties
must be paid by the inhabitants of the two other States in the capacity of
consumers of what we import. New York would neither be willing nor able to
forego this advantage. Her citizens would not consent that a duty paid by them
should be remitted in favor of the citizens of her neighbors; nor would it be
practicable, if there were not this impediment in the way, to distinguish the
customers in our own markets.
The federal government has at times acknowledged the modern parallel.
The Reagan Administration, for example, concluded that product liability law
required federal standardization. "Implicit in this decision was a
determination that conflicting state product liability laws have created such
significant burdens on interstate commerce that preemptive federal legislation
was necessary to provide consistent nationwide treatment of product liability
disputes." Years later, the burden on
interstate commerce has not lessened. Although the details of specific
proposals may be open to policy disputes, the power of Congress under the
original understanding of the Commerce Clause to rectify this burden should be
C. The Environment
Environmental law is often the regulation of a byproduct of commercial
activity, but not necessarily of commerce itself. Indeed, environmental laws
may just as frequently act as an impediment to interstate commerce.
Congress may therefore have a dual role under the Commerce Clause vis-a-vis
environmental regulation. The national government has the responsibility to
prevent state environmental regulation from unnecessarily burdening interstate
commerce. It also has the power to regulate certain environmental aspects of
The Founders would have viewed the physical environment — such as
agricultural customs, land use, and common area disputes — as purely local
concerns. Of course, the modern problem of
environmental pollution did not exist at the drafting of the Constitution.
Still, "[t]he framers and ratifiers of the Constitution established rules and
standards for determining the scope of national authority; that those rules and
standards produce different outcomes in later circumstances is neither
surprising nor troubling."
One difficulty is that environmental regulation is often partially local
and partially federal. This power sharing is in keeping with the
Founders' understanding of state control over local affairs and potential
federal control over interstate affairs.
Unfortunately, interstate commerce may suffer even under this distribution of
power. "For example, individual States may operate specific programs more
effectively than the federal government, but the combined effect of disparate
state regulatory standards may intolerably burden interstate commerce, thus
requiring uniform federal regulation."
The second role of the federal government in environmental regulation
presents more difficulty. One prominent example recently before the Supreme
Court was the "Migratory Bird Rule" under which the Army Corps of Engineers,
which is responsible for much environmental work, interpreted the Clean Water
Act to grant it the power to exercise jurisdiction over intrastate waters
visited by migratory birds. Without deciding
the constitutional question, the Supreme Court determined that the new
regulation was "an administrative interpretation of a statute invok[ing] the
outer limits of Congress' power," and therefore required the missing "clear
indication that Congress intended that result," in order to be upheld. The circuit court had concluded otherwise. "The
aggregate effect of the 'destruction of the natural habitat of migratory birds'
on interstate commerce, the court held, was substantial because each year
millions of Americans cross state lines and spend over a billion dollars to
hunt and observe migratory birds."
Reworking this analysis with the original purpose of the Commerce Clause
in mind, we notice first that the object identified as the good in interstate
commerce is the migratory bird, while the object regulated is the intrastate
water. Second, it is possible to conclude that the real interstate commerce
"good" is travel and inducements to travel, since the migratory birds
themselves are not being bought and sold across state lines. Finally, as the
Supreme Court remarked in its brief discussion on the constitutional difficulty
under the Commerce Clause, "[p]ermitting respondents to claim federal
jurisdiction over ponds and mudflats... would result in a significant
impingement of the States' traditional and primary power over land and water
The Court's analysis seems consistent with the original role assigned to
Congress by the Founders. To allow the federal government to regulate
completely intrastate waters, for seemingly non-commercial motivations, would
impede the States' ability to exercise their traditional control over
predominantly local concerns. More important, it is not apparent why Congress
would need to regulate intrastate waters in this way to facilitate interstate
D. Criminal Law
As the heart of the States's police power, criminal law has
traditionally fallen outside the province of federal regulation. Many of
today's federal criminal laws are inconsistent with the original understanding
of the Commerce Clause. Congress often seems to have forgotten that, as an
original matter, the federal government has "no general right to punish murder
committed within any of the States," and "cannot punish felonies
generally." Even though most crime has
nothing to do with "commerce," today "[f]ew crimes, no matter how local in
nature, are beyond the reach of the federal criminal jurisdiction." And the federalization of criminal law is
increasing, notwithstanding the decisions in Lopez and
The story of the Commerce Clause criminal law is not black and white,
however. There are areas, as the subtle nature of the commerce power would
suggest, where the federal government is vested with the power to intervene in
the criminal law. As Chief Justice Marshall acknowledged, Congress has the
power to enact criminal laws covering federal commercial crimes, such as piracy
or counterfeiting. Marshall also believed
that Congress could pass criminal laws, under the Necessary and Proper Clause,
in order to carry out other enumerated powers. Thus, Congress could make it a
federal crime to rob a post office under the power to establish post offices
and post roads, he concluded. Similarly,
Congress could pass criminal laws protecting federal property under Congress's
authority to maintain federal property.
Although Congress may not, consistent with the original understanding of
the Commerce Clause, rely on that Clause to "regulate noneconomic, violent
criminal conduct based solely on that conduct's aggregate effect on interstate
commerce," Congress can regulate criminal conduct in interstate
commerce. If constitutional powers "keep
pace with the progress of the country," for instance, the commerce power may
appropriately extend to federal wiretapping laws. Crimes committed on the Internet, another prominent
example, almost all of which interfere with the ability of consumers to conduct
business or buy and sell in a fundamentally interstate commercial forum, can be
addressed most effectively on a national level. The nature of the crime may
justify the exercise of the Commerce power, but Congress should not adopt new
crime legislation unless it is consistent with the purpose of that
E. Transportation Regulation
The federal regulation of certain aspects of transportation has a long
constitutional pedigree. The maintenance of roads and travelways was of utmost
importance to the commercial success of the young nation. "The power to
construct, or to authorize individuals or corporations to construct, national
highways and bridges from State to State," was considered "essential to the
complete control and regulation of interstate commerce." Amendments to prohibit Congress from exercising its
power to lay or repair highways without state consent failed. The amendments themselves suggest that at least
their authors believed Congress would otherwise have such a power already.
There must nonetheless be a limit to what Congress can regulate in the
name of transportation. If diverse state speed limits would not interfere with
the ability of goods and services to travel freely from State to State, as one
might assume they would not, the ability of Congress to establish travelways
and to regulate interstate commerce should not suffice to support using the
Commerce Clause to require state uniformity. Congressional regulation is not in
keeping with the purpose of the Commerce Clause simply because the object being
regulated is in interstate commerce. The regulation of a good in interstate
commerce should be aimed at the good's quality as an object in
interstate commerce. To complete the example above, if speed limits do not
burden interstate commerce, Congress should not be able to set maximum speeds
just because vehicles travel at State-set speeds in interstate commerce and
regulation would promote the safety of the people of the several States without
violating the States' police power.
In the jurisprudential paradigm of the post-New Deal, Congress has few
obvious restrictions imposed upon it from outside by the courts. Congress can
nonetheless continue to strive to fulfill the oath each member of Congress
takes to uphold the Constitution. The commerce power has expanded beyond its
original scope, but Congress can regulate under the commerce power with an eye
toward the original purpose of the Clause.
At the same time, legislators must keep in mind that the purpose of the
Commerce Clause was to remove barriers to interstate commerce, and that the
original understanding of the Clause permits federal regulation of the purchase
and sale of goods in commerce to address barriers created by discriminatory or
inconsistent state laws. As long as Congress hews to the purposes of the
Clause, and does not try to leverage its power inappropriately, it should not
hesitate to act.
1. Brown v. Maryland, 25 U.S. (12 Wheat.) 419, 446
2. EDWARD C. BANFIELD, HERE THE PEOPLE RULE 35
3. Id. at 24.
4. Kidd v. Pearson, 128 U.S. 1, 21 (1888).
5. See, e.g., Cipollone v. Liggett Group Inc.,
505 U.S. 504 (1992) (Stevens, J., plurality opinion).
6. Compare Egelhoff v. Egelhoff, 531 U.S. 141
(2001) (finding federal law preemption of state inheritance law statute)
with id. 153-61 (Breyer, J., dissenting).
7. See THE FEDERALIST NO. 7 at 31 (Alexander
Hamilton) (Clinton Rossiter ed., 1999).
8. Grant S. Nelson & Robert J. Pushaw, Jr.,
Rethinking the Commerce Clause: Applying First Principles to Uphold Federal
Commercial Regulations but Preserve State Control Over Social Issues, 85
IOWA L. REV. 1, 22 (1999).
9. See id. at 22 n.84.
10. See WALTER HAMILTON & DOUGLASS ADAIR,
THE POWER TO GOVERN 27 (1937).
11. Nelson & Pushaw, supra note 8, at 23;
see also HAMILTON & ADAIR, supra note 10, at 31-32.
12. THE FEDERALIST NO. 7, at 31 (Alexander Hamilton)
(Clinton Rossiter ed., 1999).
13. See THE FEDERALIST NO. 10, at 52 (James
Madison) (Clinton Rossiter ed., 1999) (condemning the "rage for paper money,
[and] for an abolition of debt").
14. See THE FEDERALIST NO. 10, at 33 (Alexander
Hamilton) (Clinton Rossiter ed., 1999).
15. THE FEDERALIST NO. 11, at 58 (Alexander Hamilton)
(Clinton Rossiter ed., 1999).
17. THE FEDERALIST NO. 7, at 30-31 (Alexander
Hamilton) (Clinton Rossiter ed., 1999).
19. James Wilson, in the Pennsylvania Convention,
(Nov. 24, 1787) in THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 141
(Max Farrand ed., 1911) [hereinafter RECORDS OF THE FEDERAL CONVENTION].
20. JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND
IDEAS IN THE MAKING OF THE CONSTITUTION 26 (1996).
21. Charles Pinkney, Argument, in 4 THE DEBATES
IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION,
at 253-54 (Jonathan Elliot ed., 1901) [hereinafter DEBATES].
22. See WILLIAM W. CROSSKEY, POLITICS AND THE
CONSTITUTION IN THE HISTORY OF THE UNITED STATES (1953).
23. Crosskey's methodology was as iconoclastic as were
his conclusions, although his research into the original meaning of words is
remarkable: Crosskey thought that all statements made in connection with the
drafting or ratifying of the Constitution were open to suspicion of political
spin-doctoring, and so should be disregarded. "The samples of word-usage and
juristic and political discussion" informing his analysis were all "drawn ...
from sources not connected with the Constitution." Id. at 5.
24. The "Migration or Importation of such Persons as
any of the States now existing shall think proper to admit, shall not be
prohibited by the Congress prior to the Year 1808." U.S. CONST, art. I, §.
9, cl. 1.
25. See RAKOVE, supra note 20, at 84
26. Letter from James Madison to Joseph C. Cabell
(Sept. 18, 1828), in 2 THE FOUNDERS' CONSTITUTION 520 (Philip B. Kurland
& Ralph Lerner eds., 2000) [hereinafter FOUNDERS' CONSTITUTION].
27. U.S. CONST, art. I, § 8, cl. 3.
28. U.S. CONST, art. I, § 2.
29. "The role of a judge ... is to find the meaning of
a text — a process which includes finding its degree of generality, which
is part of its meaning." ROBERT BORK, THE TEMPTING OF AMERICA: THE POLITICAL
SEDUCTION OF THE LAW 149 (1990).
30. Id. at 32.
31. David Currie, The Constitution in Congress:
Substantive Issues in the First Congress, 61 U. CHI. L. REV. 775, 778
(1994). Banfield does point out that the First Congress, even without invoking
the Commerce Clause, immediately took actions which may have been inconsistent
with the Constitution's text. According to Banfield:
[I]n his first message to Congress, President Washington proposed
giving assistance to agriculture, commerce, and manufacturing. The First
Congress, sixteen of whose thirty-nine members had been delegates to the
convention, made tariff legislation its first order of business. The declared
purpose of the Tariff Act was certainly constitutional — Congress had
power to lay duties and collect revenues — but this purpose concealed
another, the subsidization of particular occupations and interests, which the
Constitution did not authorize. BANFIELD, supra note 2, at
32. 2 WESTEL WOODBURY WILLOUGHBY, THE CONSTITUTIONAL
LAW OF THE UNITED STATES 721 (2d ed. 1929).
33. Id. at 778. The 1887 Interstate Commerce
Act created the Interstate Commerce Commission. 24 Stat. 399. Congress enacted
the Sherman Antitrust Act three years later. 26 Stat. 209.
34. See, e.g., St. Clair County v. Interstate
Sand & Car Transfer Co., 192 U.S. 454 (1904) (involving state regulation of
ferries between States).
35. CROSSKEY, supra note 22, at 89.
36. Id. at 84.
37. Id. at 84, 89. Crosskey's evidence for a
broader reading of "commerce" came from numerous, mostly pre-revolutionary
sources. His quotations are too extensive to categorize to any use here, but
they fail to prove his ultimate point; there may have been a broader definition
of "commerce," but Crosskey did not overcome the relevant ratification evidence
suggesting that the Commerce Clause did not employ this less common use. See
id. at 84-136.
38. 1 SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH
LANGUAGE (4th ed. 1773).
39. THOMAS SHERIDAN, A COMPLETE DICTIONARY OF THE
ENGLISH LANGUAGE (6th ed. 1796); NATHAN BAILEY, AN UNIVERSAL ETYMOLOGICAL
ENGLISH DICTIONARY (26th ed. 1789).
40. See Randy E. Barnett, The Original
Meaning of the Commerce Clause, 68 U. CHI. L. REV. 101, 114-16 (2001).
Madison's notes mentioned "commerce" thirty-four times plus sixteen times in
quotations, and commerce appeared sixty-three times in The Federalist
Papers. See id.
41. Id. at 116.
42. Id. at 114.
43. Letter from James Madison to Joseph C. Cabell
(Sept. 18, 1828), in 2 FOUNDERS' CONSTITUTION, supra note 26, at
44. Id. at 114-15. Madison may have used this
locution because of confusion about the several plans submitted to the
Constitutional Convention that employed "trade" instead of "commerce." Both the
Pinckney and the Paterson Plan proposed to grant Congress "the exclusive power
of regulating the Trade of the Several states as well with Foreign Nations
...." 3 RECORDS OF THE FEDERAL CONVENTION, supra note 19, at 607,
45. See Barnett, supra note 40, at
116-25 (noting that "the term [commerce] was uniformly used to refer to trade
or exchange, rather than all gainful activity," in the state ratification
46. 4 DEBATES, supra note 21, at 20.
47. THE FEDERALIST NO. 21, at 109 (Alexander Hamilton)
(Clinton Rossiter ed., 1999). Unlike direct discussions on the meaning of
"commerce," of course, we must be careful to take these potential insights into
the common understanding of commerce for what they are and no more. Hamilton's
separate treatment of commerce and industry, or commerce and agriculture, is
additional, but not dispositive, evidence of the general distinction between
48. Welton v. Missouri, 91 U.S. 275, 280 (1876)
(holding that a state act requiring payment of a license fee only for vendors
selling out-of-state merchandise imposed an unconstitutional burden on
49. THE FEDERALIST NO. 12, at 60 (Alexander Hamilton)
(Clinton Rossiter ed., 1999). Hamilton felt that the interests of labor and
industry were distinct, but that the two groups could see their way to common
ground at times and thus create a unified political front. He stated:
Mechanics and manufacturers will always be inclined, with few
exceptions, to give their votes to merchants, in preference to persons of their
own professions or trades. Those discerning citizens are well aware that the
mechanic and manufacturing arts furnish the materials of mercantile enterprise
and industry. Many of them, indeed, are immediately connected with the
operations of commerce. They know that the merchant is their natural patron and
friend; and they are aware, that however great the confidence they may justly
feel in their own good sense, their interests can be more effectually promoted
by the merchant than by themselves.... We must therefore consider merchants as
the natural representatives of all these classes of the
THE FEDERALIST NO. 35, at 182-83 (Alexander Hamilton) (Clinton Rossiter
50. Kidd v. Pearson, 128 U.S. 1, 20-21 (1888)
(emphasis added). Samuel Johnson's Dictionary, 1785 edition, defines
"manufacture" as "[t]he practice of making any piece of workmanship" or "[a]ny
thing made by art." SAMUEL JOHNSON, 1A DICTIONARY OF THE ENGLISH LANGUAGE (6th
51. The Daniel Ball, 77 U.S. (10 Wall.) 557, 565
(1870) (upholding a federal law regulating a ship traveling only intrastate on
navigable waters, with goods in the stream of interstate commerce).
52. United States v. E.C. Knight Co., 156 U.S. 1, 12
(1895) (refusing to apply the Sherman Antitrust Act to sugar production because
such production is local and under the exclusive control of the States).
53. THE FEDERALIST NO. 11, at 52 (Alexander Hamilton)
(Clinton Rossiter ed., 1999).
54. THE FEDERALIST NO. 7, at 31 (Alexander Hamilton)
(Clinton Rossiter ed., 1999).
56. Certainly, the discussions in The Federalist
Papers do not reveal any such fear. Some commentators have argued that
intrastate commerce was meant to be included in the Commerce Clause because the
phrase "among the several States" referred to all such activity engaged in by
the people of the States, whether intrastate or interstate. See
CROSSKEY, supra note 22, at 50-55. However, "among" was often used as
"between" during the founding era. Hamilton used the construction "between the
States" in The Federalist when referring to the commerce power. Of
"[t]he principal purposes to be answered by the union," for example, Hamilton
lists "the regulation of commerce with other nations and between the States."
THE FEDERALIST NO, 23, at 121 (Alexander Hamilton) (Clinton Rossiter ed.,
Moreover, even those scholars who accept Crosskey's expansive definition
of "commerce" tend to reject his reading of "among." Nelson and Pushaw, the
modern champions of Crosskey's view of "commerce," accept the established
reading of the phrase without hesitation:
Linguistically, the primary definition of "among," both in 1787 and
today, is "the mingling of" or associated with"; hence, the word signifies the
reciprocal relation of one thing in a group to the other members of that group.
Read most naturally, then, "among the several States" applies to commercial
activity that links one State to another. Nelson & Pushaw, supra
note 8, at 43.
57. See 2 JOSEPH STORY, COMMENTARIES ON THE
CONSTITUTION OF THE UNITED STATES §§ 1077-84, 1089 (Melville M.
Bigelow, ed., 1994) (1833); Daniel Farber, The Constitution's Forgotten
Cover Letter, 94 MICH. L. REV. 615, 641 (1995).
58. Letter from James Madison to Joseph C. Cabell
(Sept. 18, 1828), in 2 FOUNDERS' CONSTITUTION, supra note 26, at
59. Richard Epstein, The Proper Scope of the
Commerce Power, 73 VA. L. REV. 1387 (1987).
60. Id. at 1394.
61. THE FEDERALIST No. 60, at 337 (Alexander Hamilton)
(Clinton Rossiter ed., 1999) (emphasis added); see also THE FEDERALIST
NO. 8, at 37 (Alexander Hamilton) (Clinton Rossiter ed., 1999) (discussing both
"the improvements of agriculture and commerce").
62. THE FEDERALIST No. 36, at 186 (Alexander Hamilton)
(Clinton Rossiter ed., 1999).
63. 2 SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH
LANGUAGE (6th ed. 1785).
64. THE FEDERALIST No. 12, at 59 (Alexander Hamilton)
(Clinton Rossiter ed., 1999).
65. THE FEDERALIST NO. 17, at 86 (Alexander Hamilton)
(Clinton Rossiter ed., 1999).
66. l RECORDS OF THE FEDERAL CONVENTION, supra
note 19, at 329.
67. JAMES MADISON, NOTES OF DEBATES IN THE FEDERAL
CONVENTION OF 1787, 478 (1996).
68. 2 SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH
LANGUAGE (6th ed. 1785). Regulation may also have ordinarily included taxation.
Madison evinces a strong belief that the constitutional "power to lay &
collect taxes[,] duties[,] imposts[,] & excises" would have been assumed to
be a part of "the power to regulate trade," and remained a part of that power,
despite being "particularly expressed" in a separate phrase. Letter from James
Madison to Joseph C. Cabell, in 2 FOUNDERS' CONSTITUTION,
supra note 26, at 517.
69. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 196
70. United States v. E.C. Knight Co., 156 U.S. 1, 12
71. Compare Cooley v. Board of Wardens, 53 U.S.
(12 How.) 299, 319-20 (1851) (allowing a law regulating the piloting of ships
in a Pennsylvanian harbor even though it affected interstate commerce because
this level of commerce was inherently "local" and not "national") with
Champion v. Ames, 188 U.S. 321, 353-54 (1903) (upholding a federal
prohibition on the shipment of lottery tickets across state lines as objects of
72. Barnett, supra note 40, at 139-40.
73. Id. at 139 (citing 2 SAMUEL JOHNSON,
A DICTIONARY OF THE ENGLISH LANGUAGE (6th ed. 1785)).
74. Madison, for one, seems to have thought so. As
Madison contended that the "meaning of the power to regulate commerce
is to be sought in the general use of the phrase; in other words, in the
objects generally understood to be embraced by the power when it was inserted
in the Constitution." And, as is well known, the purposes of granting Congress
the power to regulate trade "with foreign nations" differed markedly from the
purpose for regulating trade among the several States." Given the need for a
broader power over the former, Madison said he "always foresaw" difficulty
properly interpreting the latter.
Barnett, supra note 40, at 145 (internal quotations omitted).
75. 22 U.S. (9 Wheat.) 1 (1824).
76. See LAURENCE H. TRIBE, AMERICAN
CONSTITUTIONAL LAW (1978) § 5-4, at 232 (footnotes omitted).
77. 2 WlLLOUGHBY, supra note 32, at 763
78. E. PARMALEE PRENTICE & JOHN G. EGAN, THE
COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION 68 (1898).
79. Professor Brad Clark makes the interesting
observation that the commerce power can only be exclusive if it is construed
narrowly; otherwise, it would trench too much on state authority. See
Bradford R. Clark, Translating Federalism: A Structural Approach, 66
GEO. L. REV. 1161 (1998).
80. 25 U.S. (12 Wheat.) 419 (1827).
81. 27 U.S. (2 Pet.) 245 (1829).
82. See id. at 252 ("If Congress had passed any
act which bore upon the case; any act in execution of the power to regulate
commerce, ... we should not feel much difficulty in saying that a State law
coming in conflict with such act would be void. But Congress has passed no such
83. 36 U.S. (11 Pet.) 102 (1837).
84. Id. at 132.
85. See Parker v. Brown, 317 U.S. 341, 360
(1943) ("This Court has repeatedly held that the grant of power to Congress by
the Commerce Clause did not wholly withdraw from the States the authority to
regulate the commerce with respect to matters of local concern, on which
Congress has not spoken."); Gwin, White & Prince Inc. v. Henneford, 305
U.S. 434, 441 (1939) (holding local tax on fruits in interstate commerce
unconstitutional because tax discriminated on activities outside the state:
"There has been left to the states wide scope for taxation of those engaged in
interstate commerce, extending to the instruments of that commerce, to net
income derived from it, and to other forms of net income not destructive of
86. PRENTICE & EGAN, supra note 78, at
[B]efore the year 1840 the construction of [the Commerce C]lause had
been involved in but five cases submitted to the Supreme Court of the United
States. In 1860 the number of cases in that court involving its construction
had increased to twenty; in 1870 the number was thirty; by 1880 the number had
increased to seventy-seven; in 1890 it was one hundred and fifty
87. 22 U.S. (9 Wheat.) 1 (1824). The Supreme Court
later ruled factually contrary to Gibbons in other cases, without a
clarifying or distinguishing explanation. See Willson v. Black Bird
Creek Marsh Co., 27 U.S. (2 Pet.) 245 (1829) (upholding state law authorizing a
dam which interfered with interstate navigation).
88. Gibbons, 22 U.S.at 193.
89. Id. at 200. Justice Marshall admits at
various points that he addresses questions, at length, the answers to which do
not control the case at hand. The Court later observed that Marshall took "care
to observe that the question [of federal exclusivity] was not involved in the
decision required by that case." Mobile v. Kimball, 102 U.S. 691, 700
90. His less controversial and more appropriate
discussion of the original understanding of "commerce" should not be
overlooked, however. See Gibbons, 22 U.S.at 25.
91. Id. at 196.
92. TRIBE, supra note 76, at 808.
94. See Epstein, supra note 59, at
95. Gibbons, 22 U.S. at 194-95.
96. 17 U.S. (4 Wheat.) 316 (1819).
97. The Court did not consider in McCulloch
whether the bank was a "proper" extension of Congress's enumerated powers
because neither side raised the issue.
98. See, e.g., United States v. Darby, 312 U.S.
100 (1941) (upholding the Fair Labor Standards Act's prohibition on the
interstate shipment of products manufactured by employers who did not comply
with the Act's wage and hours requirements); Wickard v. Filburn, 317 U.S. 111
(1942) (reading the commerce power to reach noncommercial activities like the
growing of wheat for personal consumption so long as these activities
"substantially affect" interstate commerce).
99. See Gary Lawson & Patricia B. Granger,
The "Proper" Scope of the Federal Power: A Jurisdictional Interpretation of
the Sweeping Clause, 43 DUKE L.J. 267 (1993).
100. U.S. CONST, art. I, § 8.
101. See Epstein, supra note 59, at
102. 17 U.S. at 421.
103. See DAVID P. CURRIE, THE CONSTITUTION IN
THE SUPREME COURT: THE FIRST HUNDRED YEARS, 1789-1888, 164 (1985).
104. McCulloch, 17 U.S. at 423.
105. U.S. CONST, art. I, § 8.
106. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 187-88
(1824) (emphasis added). As Professor Clark puts it, because of the
Constitution's structure, "[t]o the extent that changed circumstances have led
us to expand our understanding of what constitutes 'commerce among the several
states, changed circumstances may lead us to narrow our conception of what
means are 'necessary and proper' to regulate such commerce." Clark,
supra note 79, at 1175.
107. See Brannon P. Denning, The Dormant
Commerce Clause Doctrine and Constitutional Structure, at http://papers.ssrn.com/paper.taf?abstract_id=260830
(Feb. 19, 2001).
108. 128 U.S. 1 (1888).
109. See New York v. Miln, 36 U.S. (11 Pet.)
102 (1837) (interpreting a law requiring ships entering the State to provide
passenger lists and bonds for immigrants as an exercise of the police power to
protect the health and wealth of state's citizens); Cooley v. Board of Wardens,
53 U.S. (12 How.) 299 (1851) (allowing a law regulating the piloting of ships
in a Pennsylvanian harbor even though it affected interstate commerce because
this level of commerce was inherently "local" and not "national").
110. Kidd, 128 U.S.at 20.
111. Id. at 21.
112. The Daniel Ball, 77 U.S. (10 Wall.) 557, 565
(1870) (upholding a federal regulation that encompassed a ship traveling only
intrastate on navigable waters, with goods in the stream of interstate
commerce). At that point, "commerce in that commodity between the States has
113. United States v. Dewitt, 76 U.S. (9 Wall.) 41
114. Mobile v. Kimball, 102 U.S. 691, 697 (1880)
(rejecting assertion that the federal commerce power precluded the State from
raising funds to improve a harbor).
115. United States v. E.C. Knight Co., 156 U.S. 1, 12
(1895) (refusing to apply the Sherman Act because the production of sugar is
local and is under exclusive state control).
116. Epstein, supra note 59, at 1421.
117. 188 U.S. 321 (1903).
118. 298 U.S. 238 (1936).
119. Id. at 298 (emphasis added).
120. Id. at 304; see also Hammer v.
Dagenhart, 247 U.S. 251 (1918) (invalidating the Child Labor Act as a
regulation on production through the prohibition of goods made by children in
121. Champion, 188 U.S. at 353-64.
122. Epstein, supra note 59, at 1423.
123. Today, the law at issue in Champion might
be defended on the grounds that gambling on lottery tickets is a general drag
on the nation's economy, and thus on commerce." The difficulty with this
argument is that it has no principled stopping point, and it invites Congress
to regulate any activity which, in the aggregate, diminishes the nation's
economy. See United States v. Lopez, 514 U.S. 549, 615 (Breyer, J.,
124. Hoke v. United States, 227 U.S. 308, 323 (1913)
(upholding the Mann Act, making it a federal crime to transport a woman across
States lines for the purpose of prostitution).
125. 301 U.S. 1 (1937).
126. Id. at 40 (emphasis added). The Court said
that "although activities may be intrastate in character when separately
considered, if they have such a close and substantial relation to interstate
commerce that their control is essential or appropriate to protect that
commerce from burdens and obstructions, Congress cannot be denied the power to
exercise that control." Id. at 37 (emphasis added). Of course, given the
facts in Jones & Laughlin, it is at least arguable that any
understanding of the Commerce Clause would permit Congress to regulate a
nation-wide entity such as the Jones & Laughlin Steel Company. The Court
likely did not have to stretch the Commerce Clause by articulating a new test
to uphold the application of the Wagner Act to companies with offices in many
States. That such enterprises did not exist in 1789 is irrelevant.
127. 312 U.S. 100 (1941).
128. Id. at 113.
129. 317 U.S. 111 (1942).
130. Id. at 125.
131. 18 U.S.C. § 922(q) (1990).
132. United States v. Lopez, 514 U.S. 549 (1995).
133. 42 U.S.C. § 13981 (1995).
134. United States v. Morrison, 529 U.S. 598
135. Id. at 610 (quoting Lopez, 514 U.S.
136. See Wickard v. Filburn, 317 U.S. 111
137. The Court also concluded that Congress did not
have the power to enact the legislation under Section 5 of the Fourteenth
Amendment, upon which Congress had also rested its power. See Morrison,
529 U.S. at 619-27.
138. Robert H. Bork, Federalism and Federal
Regulation: The Case of Product Labeling, WORKING PAPER SERIES No. 46, at 4
(Wash. Legal Found. July 1991).
139. Oilman v. Evans, 750 F.2d 970, 996 (D.C. Cir.
1984) (Bork, J., concurring).
140. Id. at 995.
142. See Joel P. Trachtman, Economic Analysis
of Prescriptive Jurisdiction and Choice of Law (2001) (unpublished manuscript,
on file with authors).
143. Bank of the United States v. Deveaux, 9 U.S. (5
Cranch) 61, 87 (1809); see also Henry J. Friendly, The Historic Basis
of Diversity Jurisdiction, 41 HARV. L. REV. 483 (1928); 3 DEBATES,
supra note 21, at 533.
144. See Oilman v. Evans, 750 F.2d 970, 995-96
(Bork, J., concurring).
145. State laws establishing labeling requirements on
products similarly interfere with interstate commerce, burdening the country's
manufacturers by allowing whichever State sets the most stringent rules to, in
effect, set the agenda for the entire country. See Bork, supra
146. Kidd v. Pearson, 128 U.S. 1, at 21 (1888)
147. See Michael W. McConnell, Federalism:
Evaluating the Founders' Design, 54 U. CHI. L. REV. 1484, 1494-98 (1987)
(reviewing RAOUL BERGER, FEDERALISM: THE FOUNDERS' DESIGN (1987)) ("[T]he
principal countervailing consideration in favor of centralized government: if
the costs of government action are borne by the citizens of State C, but the
benefits are shared by the citizens of States D, E, and F, State C will be
unwilling to expend the level of resources commensurate with the full social
benefit of the action,").
148. THE FEDERALIST No. 7, at 31 (Alexander Hamilton)
(Clinton Rossiter ed., 1999).
149. C. Boyden Gray, Regulation and Federalism,
1 YALE J. ON REG. 93, 96 (1983).
150. See THE FEDERALIST NO. 17, at 86
(Alexander Hamilton) (Clinton Rossiter ed., 1999).
151. See McConnell, supra note 147, at
152. See Jonathan H. Adler, Wetlands,
Waterfowl, and the Menace of Mr. Wilson: Commerce Clause Jurisprudence and the
Limits of Federal Wetland Regulation, 29 ENVTL. L. 1 (1999).
153. Gray, supra note 149, at 93. President
George W. Bush has recently proposed a solution to this dilemma: devolve the
enforcement of federal environmental statutes to the States. Under such a
system, States may be able to use their superior local knowledge of the state's
needs and characteristics, while operating within a uniform national system
that does not allow one State to shift its environmental costs onto another.
See Eric Pianin, Bush Seeks to Trim EPA, Shift Resources to
States, WASH. POST, July 23, 2001, at A1.
154. See Solid Waste Agency v. United States
Army Corps of Engineers, 531 U.S. 159 (2001).
155. Id. at 172.
156. Id. at 166 (quoting Solid Waste Agency v.
United States Army Corps of Engineers, 191 F.3d 845, 850 (7th Cir. 1999)). On
the stronger constitutional footing of the "navigation" analysis in
Gibbons, the Army Corps' original regulations under the Act extended
only to those waters and "wetlands" that were part of or connected to navigable
157. Id. at 174.
158. It might be responded that there is a collective
action problem on the state level over who will take responsibility for
environmental damage that spans state borders. Unlike the collective action
problem frustrating national tort reform efforts, however, the problem in the
environmental context is the failure of States to act, not irrepressible
antagonistic state regulation. State inaction does not lead to discrimination
by one State against another, and obviously does not lead to a cacophony of
conflicting state laws. Accordingly, the analysis of whether the federal
government should act under the commerce power differs.
159. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 426,
160. Edwin Meese III, Big Brother on the Beat: The
Expanding Federalization of Crime, 1 TEX. REV. L. & POL. 1, 3
161. See McCulloch v. Maryland, 17 U.S. (4
Wheat.) 316, 416-17 (1819).
162. See id. at 417.
163. United States v. Morrison, 529 U.S. 598, 617
164. See Pensacola Tel. Co. v. W. Union Tel.
Co., 96 U.S. 1, 9 (1877).
165. There may be a separate and additional
justification for rejecting the federal government's intrusion into States'
traditional law enforcement role. The Domestic Violence Clause of the
Constitution requires the federal government to get permission from a State
before it can intervene in internal state violence. See U.S. CONST, art.
IV, § 4 ("[t]he United States shall... protect each of [the States]
against Invasion; and on the Application of the Legislature, or of the
Executive (when the Legislature cannot be convened) against domestic
Violence"); Jay S. Bybee, Insuring Domestic Tranquillity: Lopez,
Federalization of Crime, and the Forgotten Role of the Domestic Violence
Clause, 66 GEO. WASH. L. REV. 1 (1997).
166. California v. Central Pacific Ry. Co., 127 U.S.
1, 39 (1887).
167. See 2 RECORDS OF THE FEDERAL CONVENTION,
supra note 19, at 406.
168. Although Congress can plainly put conditions on
the grants it makes to the States, there must be limits on its exercise of the
Spending Clause power as well. Insisting that federal transportation funds be
used for their allocated purpose is legitimate; using those funds to secure a
commitment that is unconnected to the funds' purpose, however, is much more
problematic. To illustrate, it is one matter for Congress to insist that a
grant it makes for mass transportation improvements not be used to build a
museum. But Congress abuses its Spending Clause power when it conditions
transportation monies on the state's agreement to build a museum, set a certain
speed limit, or ban cigarettes. See, e.g., Lars Noah, Administrative
Arm-Twisting in the Shadow of Congressional Delegations of Authority, 1997
WIS. L. REV. 873 (1997).