#17: The Meaning of Commerce

Our Commerce Power readings trace the development of the Commerce Power over several important spans of time: 1) before the New Deal, 2) the New Deal era, 3) the Commerce Power heyday, and 4) the modern era where the Commerce Power is seemingly in decline. The readings are formatted this way because of the sheer volume of important jurisprudence to cover. It’s no surprise, really; the Commerce Power is among the most important and wide-ranging powers that Congress has. Its use of the Commerce Power has long been controversial.

A reasonable starting point for understanding of the Supreme Court’s rollercoaster relationship with the Commerce Clause is to determine what in the world this Clause meant when it was enacted. As you see in the readings for today, the Court has always shown an interest in making arguments about the original meaning and/or original intent of the Commerce Clause.

As you might imagine, fiscal conservatives today argue that the Commerce Clause was originally intended more as a call to facilitate trade (and keep states from mucking it all up) than to exercise regulatory power over it. Take, for example, this Heritage Foundation column:

“In its original meaning, the clause functioned primarily as a constraint upon state interference in interstate commerce.”

This is in contrast, of course, to the view of progressives, who argue that the Commerce Clause was always intended to create a strong regulatory role for Congress. Contrast the Heritage Foundation account with this taste of the account provided in this column from People for the American Way:

“It is clear that the Framers who met in Philadelphia wanted the new Constitution to establish a comprehensive national legislative power to rationalize the fraught field of interstate commerce.”

So, it’s clear that the results of an originalist analysis of the Commerce Clause is in the eye of the beholder.

Paper Topic #17: Given what we know about the history of the country under the Articles of Confederation and the interests and concerns of the folks who wrote the Commerce Clause, what is the most plausible original meaning of that Clause? Which camp is closest to the original meaning, the pre-New Dealers, the Commerce Clause expansionists, or the modern Republican Court?

Suggested Reading: Barnett, R.E. 2001. “The Original Meaning of the Commerce Clause.” U. Chi. L. Rev. 68(Winter):101.