The Commerce Clause: Protector of Trade or Tool for Expanding Government Power?
Ever since its inclusion in the Constitution, the Commerce Clause, along with the Necessary and Proper clause, has been a source of debate and contention. Indeed, there were over 1400 cases filed with the Supreme Court challenging its application before the 20th century alone. With the passage of the controversial Affordable Care Act, the Commerce Clause was brought once more to the forefront of national attention. The Obama administration, and other prominent voices on the Left, claim that the clause itself gave them broad powers of control and regulation. Those on the Right claim that the clause was put into place specifically to limit the influence of the Federal government on the power of trade between the states. The question is clear: does the Commerce Clause truly grant unlimited power to expand the Federal government through regulation, or has it been abused by those in the Federal government off and on since its inception? I will attempt to answer this question by examining first the Clause itself, the Federalist Paper written by James Madison (the father of the Commerce Clause) and then the Supreme Court cases which have called it into question.
Let us begin by examining the wording of the Commerce Clause (along with the Necessary and Proper clause) itself:
The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States…To regulate commerce with foreign nations, and among the several states, and with the Indian tribes…To make all laws which shall be necessary and proper for 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. (US Const. art. I, sec. 8, cl. 1, 3, 18)
Upon examination, the simplest way to interpret this part of section 8 of the Constitution is through the definition of the phrase “to regulate”. The narrowest definition of the phrase is “to make regular”. In political terms, this refers to the facilitation of the free flow of goods, but not (except in extreme cases of danger) the prohibition of the flow of goods between the states and other countries. This is the understanding that strict Constitutionalists have; that the Federal government has no authority, per the 10th Amendment, to interfere with commerce between the states except in cases where the states’ decisions would directly impact the welfare of other states. However, this particularly narrow interpretation of the clause has never been recognized by the Supreme Court.
From the very beginning, the highest court in the land has consistently interpreted the Commerce Clause in favor of assigning more Federal power in regulating anything that could be remotely tied to commerce in any way. Over the years, the Commerce Clause has been interpreted to include the following: 1. Trading/trafficking of economic commodities 2. The modes of transportation involving economic commodities 3. Trading/trafficking and the modes of transportation for any commodity 4. The movement of any good/person and how it is moved 5. Any activity that substantially impacts trading/trafficking/transportation of commodities, economic or otherwise 6. Any human activity that has ultimately has impact on any activities in more states than one.
James Madison himself (the author of the Commerce Clause and one of the architects of the Constitution, along with the Bill of Rights, as well as our 4th President) delineated in Federalist Paper 42 that the purpose of the Commerce Clause was not to create an unfettered ability for the Federal government to regulate every action performed in the States; rather, it was meant to create an environment where one state could not egregiously (through tariffs/trade and other legal contrivances) take advantage of another in an unfair trading arrangement. Madison also felt that the Articles of Confederation did nothing to protect the right of the sovereign United States to regulate foreign commerce. “To the proofs and remarks which former papers have brought into view on this subject, it may be added that without this supplemental provision, the great and essential power of regulating foreign commerce would have been incomplete and ineffectual” (James Madison, Federalist Paper #42, January 22, 1788).
The first landmark decision which expanded the power of the Federal government to broadly interpret the Commerce Clause was Gibbons v. Ogden in 1824. In 1808, the state government of New York granted an exclusive monopoly to business partners Robert Livingston and Robert Fulton over the waterways under the sovereignty of New York State. In 1815, Aaron Ogden and Thomas Gibbons entered a brief partnership together, buying a license from the Livingston and Fulton assignees. The partnership collapsed when Gibbons used Ogden’s licensed route to operate another steamboat. The New York Court of Errors granted a permanent injunction against Gibbons, who then appealed all the way up to the Supreme Court itself, which decided that the Federal government did indeed have the power to regulate as part of its purview. The Supreme Court held that states cannot pass legislation for the regulation of its own affairs if said legislation contradicts federal law enacted under the Commerce Clause. Per Chief Justice John Marshall, “This 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.” Gibbons v. Ogden (1824). Justice Marshall never completely defined what he considered to be commerce, however; he just established it as “something more” than traffic. This decision set the stage for ever expanding regulatory government, and led to the arguments that happen to this day as to what defines “commerce”.
The next case to be discussed, The Daniel Ball (1871), helped to cement the power that the Federal government has to regulate intrastate transport of goods if the goods originated in one state and are shipped to a different state. Congress passed an Act in 1938, which prohibited operating a steam ship on the internal waters of the United States without a license. The Daniel Ball, a steamer operating on the Grand River between Grand Rapids and Grand Haven, Michigan, operated without the required license and was fined $500.00. The Federal government filed a libel against the Daniel Ball to collect the fine, but the owner of the ship claimed that the ship itself did not need a license, due to the Grand River not being a navigable water of the United States; also, the ship itself did not engage in interstate commerce. This allowed the Federal government to redefine what constituted a navigable water in the parlance of the law. It also affirmed that transportation of a good, even if it did not cross state boundaries, was considered to be intrastate commerce if the goods that are being transported themselves are destined for or originated from a different state, and thus could be regulated/controlled by Federal legislative fiat.
The case Wickard v. Filburn (1942), was one of the most egregious examples of a decision contrary to the desires of the Founding Fathers. During the Great Depression, Congress set quotas on wheat production through the Agriculture Adjustment Act of 1938. The goal of the act was an attempt to manipulate the free market, to keep the market price of wheat stable by preventing shortages and surpluses. The plaintiff, Roscoe Filburn, was growing his own wheat for on-property consumption in Ohio. Because he exceeded his quota, despite the fact that it was for personal use and had nothing to do with commerce, Filburn was ordered to destroy his crops and pay a fine. Filburn challenged this decision, and eventually the case was brought before the Supreme Court by Claude Wickard, the Secretary of Agriculture during the time. The Court held that Congress did indeed have the power to regulate local intrastate activities, if they could potentially have an aggregate effect on interstate commerce. To wit, since Filburn was not buying chicken feed and using his own grain, he was affecting intrastate commerce itself.
In Hammer v. Dagenhart (1918), the Supreme Court decided (in a rare instance) against the power of the Congress to utilize the Commerce clause to enact laws and regulations. The Congress had passed the Child Labor Act in an attempt to combat the use of child labor in factories. While a very noble ideal, the action taken by Congress violated the Constitution, per the Supreme Court, which ruled that Congress did not have the power to regulate the means by which goods were manufactured; only the goods themselves once they were manufactured. The decision delineated that the commerce power wasn’t intended to equalize economic conditions by allowing Congress to regulate means of production that they deemed “unfair”. The Supreme Court specifically ruled that the States held the police power in this instance to regulate local trade and manufacture, per the 10th Amendment.
Another instance where the Supreme Court actually ruled in favor of the states and the individual over the Federal government was United States v. Lopez (1995). Congress had enacted the Gun-Free School Zones Act of 1990 (GFSZA), which prohibited the possession of firearms within school zones. A 12th grade student, Alfonso Lopez Jr., carried a concealed and loaded handgun into his high school and was arrested and charged under Texas law with firearm possession on school grounds. The district court upheld the indictment under the Commerce Clause. The Fifth Circuit Court of Appeals reversed the decision, holding that the GFSZA had exceeded Constitutional authority under the Commerce Clause, and was therefore unconstitutional. At that point, the Federal government brought the case before the Supreme Court which, in this instance, agreed with the Fifth Circuit.
Thomas Jefferson once said, “The natural progress of things is for liberty to yield, and government to gain ground.” (Thomas Jefferson to Edward Carrington, Paris, May 27, 1788). When the Founders began the Great American Experiment, they had no idea that the Constitution they were creating would be used to justify telling people when, how and what they could or could not buy. The Commerce Clause, along with the Just and Proper Clause, have led to more centralized expansion of the Federal government than any other part of the Constitution. This is directly in opposition to what was originally intended, per both the Federalist and anti-Federalist papers. The Founders feared the power of a centralized bureaucracy as one of the greatest dangers to the ideas of liberty and freedom; unfortunately, we live in a time where all the branches of our ever expanding government have forgotten this. It is the job of the American people to remind them of their obligations, and to ensure that the scope and size of government are properly limited.

Works Cited
US Const. art. I, sec. 8, cl. 1, 3, 18. Print.
Gibbons v. Ogden. 22 U.S. 1. Supreme Court of the United States (1824)
The Daniel Ball. 77 U.S. 557. Supreme Court of the United States (1870)
Wickard v. Filburn. 317 U.S. 111. Supreme Court of the United States (1942)
Hammer v. Dagenhart. 247 U.S. 251. Supreme Court of the United States (1918)
United States v. Alfonso Lopez Jr. 514 U.S. 549. Supreme Court of the United States (1995)
“From Thomas Jefferson to Edward Carrington, 27 May 1788,” Founders Online, National
Archives (http://founders.archives.gov/documents/Jefferson/01-13-02-0120, ver. 2013-
09-28). Source: The Papers of Thomas Jefferson, vol. 13, March–7 October 1788, ed. Julian P. Boyd. Princeton: Princeton University Press, 1956, pp. 208–210.
“The Powers Conferred by the Constitution Further Considered” Federalist Paper #42. James
Madison. From the New York Packet. Tuesday, January 22, 1788.