“An act for laying a duty on goods, wares, and merchandizes, imported into the United States. Sec. 1. Whereas it is necessary for the support of government, for the discharge of the debts of the United States, and the encouragement and protection of manufactures, that duties be laid on goods, wares, and merchandizes, imported, etc.” (First Act of Regulating Commerce signed by President Washington, July 4, 1789)
The federal government for years has claimed expansive powers under the authority to regulate commerce - so much, that the most innocent private activity can now come under federal control simply because it could have a slight influence on “interstate commerce” (such as the wheat in your bread having come from another State). In the 1960’s, Congress claimed the authority to ban discrimination in employment, public accommodations, and more through the power to regulate commerce under the Civil Rights Act of 1964.
Speaker of the House Nancy Pelosi issued a press release in September of 2009 that read, in part: “[T]he Constitution gives Congress broad power to regulate activities that have an effect on interstate commerce. Congress has used this authority to regulate many aspects of American life, from labor relations to education to health care to agricultural production. Since virtually every aspect of the heath care system has an effect on interstate commerce, the power of Congress to regulate health care is essentially unlimited.”
Such sentiments ignores, as the evidence below will show, the regulation of commerce by design deals solely with duties and imposts on the intercourse of trade between Nations or States, which in return had absolutely nothing to do with regulating internal industries, labor or transactions. As Thomas Jefferson put it: “To make a thing which may be bought and sold is not to prescribe regulations for buying and selling. Besides, if this were an exercise of the power of regulating commerce, it would be void, as extending as much to the internal commerce of every state, as to its external.”
Alexander Hamilton responded in his defense of the constitutionality of the Bank of the United States by saying the regulation of buying and selling was indirectly related to the regulation commerce, but such regulations “falls more aptly within the province of the local jurisdictions than within that of the general government.”
The word “commerce” was always understood to mean the “exchange of commodities” through imports or exports - or simply, the navigation of consumable goods between markets (ports) - which made regulating the slave trade awkward because it would have required treating human beings as merchandise. Records of the constitutional convention shows James Madison felt it was “wrong to admit in the Constitution the idea that there could be property in men. The reason of duties did not hold, as slaves are not like merchandise, consumed &c.”
This prompt a separate clause that specifically dealt with the foreign (not domestic) importation of slaves by a narrow exception to impose a head tax and navigation restrictions (embargo) on humans.
The term “to regulate commerce” had a very definite and well-understood meaning before and after the American Revolution. The phrase had become popularized by disputes between the Colonies and England, as well with the Colonies themselves. It was never understood to embrace any of the offices between ship and shore, such as pilotage, wharfage, quarantine, etc., all of which were regulated by colonial law and not by the laws of England.
The regulation of “foreign commerce” embraced the custom of regulating public merchant-vessels and the seamen who were employed aboard these vessels in the transport of articles of trade. Generally speaking, this included health standards aboard the ships and taxes for their health care. It could also include building customhouses and construction of lighthouses in order aid the ships to safely navigate to port.
This served the purpose of protecting governments revenue stream from imports. The flow of imports and the revenue from such imports could be interrupted by unhealthy seamen, piracy or lack of navigation aids such as lighthouses.
The regulation of commerce was also never understood to embrace the act of imposing duties for revenue.
Note that Article 1, Sec. 9 clearly distinguishes between the “regulation of commerce” and revenue. Think of taxes having dual purposes, one to generate revenue and the other to regulate the free flow of trade between independent governments. Justice Story wrote in his commentaries, “the eighth section of the first article of the constitution authorizes congress to lay and collect an impost duty; but it is granted, as a tax power, for the sole purpose of revenue; a power, in its nature, essentially different from that of imposing protective, or prohibitory duties.”
If regulating commerce between States required legislating and enforcing laws over such things as labor, banking, buying and selling rather than taxes on articles of trade then one has to ask how the framers expected to regulate commerce with foreign nations? The United States would have been in a constant state of war in attempting to enforce such things as insurance industry regulation inside other foreign countries. Surely no one is going to argue the power to regulate commerce can have two extreme opposite meanings with other countries and between the States.
In other words, the fact Congress is empowered to regulate commerce with other countries in return defines the limits between the States because the power is identical. It would be absurd to argue the regulation of commerce with other nations provided the power to regulate everyday life within other nations.
The power to regulate commerce was, in the full sense of the meaning of the term and usage of the day, meant the act of imposing tariffs on imported articles in order to encourage or protect domestic manufactures from competing imports. President James Monroe re-affirmed this understanding in 1822:
Commerce between independent powers or communities is universally regulated by duties and imposts. It was so regulated by the States before the adoption of this Constitution, equally in respect to each other and to foreign powers. The goods and vessels employed in the trade are the only subjects of regulation. It can act on none other. A power, then, to impose such duties and imposts in regard to foreign nations and to prevent any on the trade between the States was the only power granted.
Monroe’s explanation of regulating commerce makes it easy to understand why the Constitution speaks only of laying duties, imposts or tonnage instead of the authority to make rules over internal industries or professions of States or foreign nations. To argue the regulation of commerce means something more than the laying of duties would never find support from the history of regulating commerce.
Lord Chatham (aka William Pitt, the Elder; many American cities named after him, including Pittsburgh, Pennsylvania) speaking before the House of Commons in 1765 said, “there is a plain distinction between taxes levied for the purpose of raising a revenue, and duties imposed for the regulation of trade.”
James Madison writing in Federalist No. 56 said, “Taxation will consist, in a great measure, of duties which will be involved in the regulation of commerce.”
During the August 1787 convention, Madison noted that Col. Mason observed the “particular States might wish to encourage, by impost duties, certain manufactures, for which they enjoyed natural advantages, as Virginia [in] the manufacture of hemp, &.c.”
Madison responded by saying the “encouragement of manufactures in that mode requires duties, not only on imports directly from foreign countries, but from the other States in the Union, which would revive all the mischiefs experienced from the want of a general government over commerce.”
The regulation of commerce can encourage local manufacturers by making imported goods more expensive, thereby encouraging local production, whether in agriculture or by factory of the same since domestic production will have a more favorable market advantage.
In his letter on tariffs in September of 1828, Madison wrote: “The power (to regulate commerce) has been understood and used, by all commercial and manufacturing nations, as embracing the object of encouraging manufactures. It is believed that not a single exception can be named.” However, the courts fatal view of this power to regulate commerce is one that entails full legislative powers over buying, selling and not anything to do with protection or promotion of local industries from outside trade.
Oliver Ellsworth during the convention clearly stated the object of regulating commerce between the States: “It is best as it stands—The power of regulating trade between the States will protect them agst each other—Should this not be the case, the attempts of one to tax the produce of another passing through its hands, will force a direct exportation and defeat themselves.”
In Federalist No. 42, Madison explains the objective behind the regulation of commerce among the States as to prevent the laying of duties on other States imports and exports:
A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out, to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter, and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquility.
James Wilson said to deny the general Government the power to tax the exports of the States would remove “half the regulation of trade.” Delegate John Langdon insisted the regulation of tonnage through duties “was an essential part of the regulation of trade.” In an 1827 letter to Joseph Carrington Cabell, Madison explained the meaning of the words this way:
The meaning of the power to regulate commerce is to be sought in the general use of the phrase; in other words, in objects generally understood to be embraced by the power when it was inserted in the Constitution.
The objects embraced by the power was that “no state be at liberty to impose duties on any goods, wares, or merchandise, imported, by land or by water, from any other state, but may altogether prohibit the importation from any state of any particular species or description of goods, wares, or merchandise, of which the importation is at the same time prohibited from all other places whatsoever.” [Madison’s resolution for empowering Congress to regulate trade, November 30, 1785]
James Madison draws attention to the disputes between the States in regulating commerce in an 1832 letter to Professor Davis of the University of Virginia:
The power to regulate commerce among the States was well known and so explained by the advocates of the Constitution when before the people for their consideration, to be as a necessary control on the conduct of some of the importing States toward their non-importing neighbors. A recurrence to the angry legislation produced by it among the parties, some of whom had passed commercial laws (tariff’s) more rigid against others than against foreign nations, will well account for the constitutional remedy.
Madison is talking about how New York was attempting to break up the trade of Connecticut and New Jersey by imposing heavy duties on every vessel entering from those States. Delaware and New Jersey attempted to attract the foreign trade of Pennsylvania and New York by offering lower import duties. Massachusetts and Rhode Island placed prohibitive duties on imports via British ships while Connecticut admitted such imports free, seeking a monopoly of domestic trade in British products.
Several States imposed heavy duties on goods from all other States with the object of encouraging domestic production and of protecting the supply of coin. Because of such non-uniform approach to regulating foreign commerce among the States, lead to the power being only invested in Congress while no one (States or Congress) was allowed to have anything to do with regulating Commerce between the States (explained below).
Mr. Madison said it was “very certain” that the power to regulate commerce among the States “grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged.”
How could the regulation of commerce among the States be considered a “negative and preventive provision” as well as not any “power to be used for the positive purposes” of the general government? The answer is simple under Article I, Section 10 of the Constitution where the States are directly prohibited “without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws.” Furthermore, Congress is forbidden to tax the exports of a State, give preferences to ports where vessels may “enter, clear, or pay duties in another.”
In other words, Congress was left with no positive power to touch trade between the States because its regulation serves only to prevent and not empower Congress over the subject. This explains why Congress never bothered to keep statistics of domestic commerce among the States. It wasn’t until 1845 that anything remotely dealing with domestic commerce was printed (House Doc. No. 35, 28 Cong., 2 sess., 1845), and that was limited to only trade of the Ohio canals.
On the other hand, there is a greater deal of latitude and interest in the regulation of foreign commerce because Congress had more control in determining what goods from where shall receive preferred duties or which shall receive prohibitory duties. They also had the very important power to make treaties of commerce that could lead to favorable duties or navigation on individual States exports to other countries.
Joseph Story said if expansive powers could be assumed under the power to regulate commerce then it would be a demolition of all constitutional boundaries:
The question comes to this, whether a power, exclusively for the regulation of commerce, is a power for the regulation of manufactures? The statement of such a question would seem to involve its own answer. Can a power, granted for one purpose, be transferred to another? If it can, where is the limitation in the constitution? Are not commerce and manufactures as distinct, as commerce and agriculture? If they are, how can a power to regulate one arise from a power to regulate the other?
It is true, that commerce and manufactures are, or may be, intimately connected with each other. A regulation of one may injuriously or beneficially affect the other. But that is not the point in controversy. It is, whether congress has a right to regulate that, which is not committed to it, under a power, which is committed to it, simply because there is, or may be an intimate connexion between the powers…
If this were admitted, the enumeration of the powers of congress would be wholly unnecessary and nugatory. Agriculture, colonies, capital, machinery, the ages of labour, the profits of stock, the rents of land, the punctual performance of contracts, and the diffusion of knowledge would all be within the scope of the power; for all of them bear an intimate relation to commerce. The result would be, that the powers of congress would embrace the widest extent of legislative functions, to the utter demolition of all constitutional boundaries between the state and national governments.
What about coasting trade (navigation)?* Nothing had changed in regards to coasting trade between the old and new Constitution. Under the old Articles of Confederation, Congress had no jurisdiction over transportation from State to State. Interstate transportation was left to each individual State to regulate and Congress was just as forbidden then, as they are today to tax articles exported from any State.
Charles Pinckney, a man who would know what he is talking about on this subject since he was involved in the framing of the Constitution, sums up the entire issue with this statement in the House of Representatives on February 14, 1820:
I will only mention here, as it is perfectly within my recollection, that the power was given to Congress to regulate the commerce by water between the States, and it being feared, by the Southern, that the Eastern would, whenever they could, do so to the disadvantage of the Southern States (impose a tariff), you will find, in the 6th section of the 1st article, Congress are prevented from taxing exports, or giving preference to the ports of one State over another, or obliging vessels bound from one State to clear, enter, or pay duties in another; which restrictions, more clearly than any thing else, prove what the power to regulate commerce among the several States means.
Pinckney simply points out the restrictions placed upon Congress effectively leaves the regulation of commerce between the States as a “negative and preventive provision.” In addition, Pinckney brings up a very important point that defines the power to regulate commerce among the States that many ignore: The very purpose sought from the insertion of the words. Moreover, the answer to this question has always been without controversy to prevent one State from laying imposts or duties on another States imports as it transits through its limits.
If both the States and the text of the clause intended to give Congress exclusive legislative powers over all internal activities of trade because such activities might have an influence on trade across State lines, then one must ask why don’t the convention records show this intent? Why is the only expressed intent was to prevent one State from laying duties on another States imports and nothing further?
Why did the framers use the words “regulation of commerce” that was understood by everyone to mean only duties and imposts on imports of consumable goods if there was an additional ultra power desired to be invested in Congress?
If the true meaning and intent has always been to prevent the laying of duties by one State on another States imports, then there can be no implied power over commercial activities within a State that might be deemed to affect the trade of another State. In other words, Congress has no authority over the baking of bread because the ingredients might be from another State because there is no attempt by a State to regulate another States commerce through duties.
Lastly, there is one interstate commerce fact that stands out: Congress never compiled any annual records or statistics involving domestic commerce among the States all through the nineteenth-century. Maybe because the regulation of commerce really involved only the levying of taxes on the physical articles of imports for trade — just like had been the case during colonial times.
*Coasting trade is domestic trade between one domestic port to another as distinguished from trade between a domestic port and foreign port.
Never heard of P.A. Madison before but will say he makes a very pursasive argument that current understanding of the meaning of regulating commerce is crap. Regulating commerce through taxes answers more questions then it raises which to me suggests it is probably the truth.
JimAZtec replied to comment from K. Bloomfield:
Nah, the regulation of commerce didn’t go any further then how it was already being regulated at the time. No need to debate the intent since the practice of regulating commerce is the guiding rule.
Uh, the quotes from Madison, Story, etc., are most compelling, one must admit. But, were they written in a vacuum or in response to advocates of an opposing view, i.e., that the power to regulate commerce went far beyond preventing the various states from imposing duties or similar restrictions on goods flowing between them?
If we look back on the last 150 years or so, where would we be with the limited view of the commerce clause? Wasn’t it the expanded view of the commerce clause that the Supreme Court relied upon in striking down state laws passed during the “Granger” movement, that were not a tax or tariff directed against another state, but were enacted to combat the predatory practices of the railroads and other trusts and their affect on the agricultural interests in those states? In other words, I submit that the “modern” view of the commerce clause was first invoked by the Supreme Court to “protect interstate commerce” from what many regarded as the various states’ exercise of their legitimate police powers, which the Court deemed a “burden on interstate commerce.”
That the expanded view of the commerce clause has been invoked in defense of the Civil Rights Act and similar legislation, is, to me, a mark of progress. And let’s keep in mind that an “original intent” in the founding of our nation was that “all men are created equal,” a statement written by a slave holder who, along with many other slave owning Founders, saw fit to free his slaves upon his death.
In sum, what I perceive in this “original intent” debate is a racially motivated attempt to ignore the judicial doctrines that first protected moneyed interests and then were invoked to protect human interests. That motivation, though covered in legal and academic robes, actually wears the sheets of hatred, intolerance, bigotry, and terror, under which the cowardly hoodlums of the KKK operated.
Both original meaning, intent and textual analysis are in full agreement with each other over how commerce was indeed regulated through taxes. The argument that says the words imply legislative powers over buying and selling is weak to null, and weak has left the building.
JimAZtec replied to comment from SRR in Maine:
Sounds like you are one of those kooks who believe in a living, breathing constitution. A court can say anything it wants, like there is no ocean west of California…it is all a mirage! You want to rewrite text books and replace facts with court opinion?
Contrary to your assertion, the Federalist Papers is not solely being used here in determining what to regulate commerce means. It is the custom, the general practice of regulating commerce and the ratifying convention that is being used. That trumps unsupported opinion any day of the week.
Kennedy recently wrote in United States v. FEC that “Our precedent is to be respected unless the most convincing of reasons demonstrates that adherence to it puts us on a course that is sure error.”
Madison proved the error caused by the adherence to current unsupported precedent.
It seems the author forgets, in his constitutional ‘wisdom’, the trust and duty placed in the Supreme Court instituted by this very Constitution for having the final say. And it keeps on having ‘final say’ when new cases are brought before it.
No matter how intellectual and angered the meandering may seems to guide the whiners and complainers, the last Supreme Court precedent is what always carries the day, and can’t we be thankful for that (the checks and balances and separation of powers). Current adjudication stands on the prededent of a more liberal interpretation of ‘commerce’. The biggest problem with using the Federalist Papers for interpreting the Constitution is that they were not written by the Supreme Court as ajudication of any constitutional question. They too, become the meanderings of men and irrelevant in the conversation. The only thing that matters is the decision of the court.
If you have a problem with current law, including healthcare insurance reform, take it up in court. Though I’m sure having people fawn over your brilliance is more fulfilling, I’d love more to see how you fair in court taking your arguments to the Big 9 rather than beying us swooning light weights.
Isn’t this country great? Partcularly when you can harp about and talk revolution and not get arrested, even when you are questioning the very documents and adjudications which assure you such freedoms.
Just sayin’,,,,,,
A unitary executive could use his/her constitutional power of review and pen whole agencies right out of existence that get carried away with unconstitutional economic regulation. Or s/he could override any agency’s regulations at will. The problem is in getting such a person interested in politics and then getting the same person elected.
I can’t find any evidence that “sevices” was considered a regulation of commerce. Passenger services was wholly ignored under commerce regulation prior to congress making safety rules for immigrants aboard ships. I think James Madison conclusively proves why that was so. I think it is safe to conclude only the vessels and their articles of trade was the only thing regulated.
States could make their ports off limits to ships that didn’t meet certain safety standards in passenger services since the power for Congress over what ports ships can enter was withheld.
Services I think is linked heavily to the activities of buying and selling and not the intercourse of trade itself. Marshall in Gibbons v Ogden said services that improve articles of trade before (and implying after) is not the regulation of commerce because services act on articles before (or after) it becomes an article in commerce.
Commerce means: 1. trade in goods and services - the large-scale buying and selling of goods and services. It is also referencing ‘only’ foreign Nations, several (not all) States and Indian Tribes that have sovereignty with the United States. The Constitution does not empower the U.S. Government, in any form, to regulate what ‘Individuals’ might or might not want to buy or sell. The right not to buy Health Insurance is the right of the people, per the X Amendment!
Great job in proving commerce was regulated by duties and not rules of buying & selling. This will not stop the court from lying but it will conclusively prove they are liars who will avoid telling the truth at all costs.
WOW! I am just floored. Never read anything like this before. A+ to P.A. Madison.
If you can put up with Marshall’s beating around the bush dicta in Gibbons, you will find he confirms the framers conclusions drawn here. It’s an interesting ruling on a narrow question if you can understand what he is talking about when he mentions “navigation.”
My opinion is the 14th Amendment to the U.S. Constitution Section 1.would be violated if the Health Care Bill survives court challenges. This ammendment discusses life, liberty, property, due process, equal protection. No one should be deprived or denied the 14th Amendment.
US v. Darby massively expanded the commerce clause and just wiped out the tenth amendment. Calling the 10th merely a ‘truism’! (I just read about it).
In ‘41 the US just lost an amendment to the Constitution?
How do we get it back and get the Court to properly define commerce (as trade)?
I agree with you entirely.
Ignoring this truism has indeed caused nothing but conflicts between competing sovereignties. This alone should tell justices their commerce jurisprudence is false.
“The Commerce Clause deals solely with exchanges of trade between Nations or States, which in return has absolutely nothing to do with regulating internal industries, labor or transactions. Regulating trade with another country has never been construed to mean to make and enforce laws that regulate the internal industries or labor of that country under the ruse such activity might have an effect on commerce with the United States.”
That is an absolute truth that needs no Supreme Court ruling to vindicate.
I find the language within the constitution and its history and the framers explanation of regulating commerce far more persuasive then the courts. The courts current precedent is something you would expect from lawless tyrants.
If I understand this correctly the decision in POLAR TANKERS, INC. v. CITY OF VALDEZ, ALASKA was not correct. Valdez was not taxing the tonnage of trade belonging to any state or foreign country, but taxing the dry weight of the ship.
In Reply to Lloyd Benedict:
Technically per strict meaning and operation of the words as employed by the framers, there is nothing for the Feds to regulate under the commerce clause between the states.
The states have always imposed duties on those goods imported whose final designation was the state imposing the tax/duties. They are only prevented from imposing duties on other states imports as those imports pass through.
Hi, great article. I work with hundreds of wineries in the US and many of these people cant ship directly to residents in some states simply because the license and taxes to pay the destination state are ridiculously high. I ‘feel’ this is unconstitutional because these business owners produce a federally regulated good that is licensed at the Federal level, however states are preventing wineries the ability to sell across state lines. Is there any fact to my ‘feeling?’
I’m guessing you libertarian, lol?
It is a fantastic article. I have been researching Constitutional issues myself, and aside from Madison’s notes, Jonathan Elliot’s notes are also extremely helpful, in understanding the original intent of the constitution.
Good work!
I am going to nominate this commerce clause treatise as the greatest ever written.
It’s really funny how some Americans always complain that they have so little freedom while actually living in the most free country in the world. It is even more funny that you expect a 200-years old document to guide government behavior even today. After all it was written for a very different country. Unregulated commerce is not viable because it would run out of political support very fast and that would result in general unrest and instability.
It’s just like the free trade. We have to impose some limitations on it and talk bad about it just so that it can continue to exist. If politicians stop appeasing the protectionist feelings of the public and stop pretending that they’re against outsourcing american jobs, the public might take the matters into its own hands and then we will see a crisis that will dwarf the Great Depression.
I don’t think there is anything “obscure” about the clause, Edlfwood.
It is only obscure if you read it as only saying “To regulate Commerce among the several States,” ignoring the rest of the clause and all other articles under the Constitution.
The framers made a big mistake leaving this clause 1-8-3 so obscure, the misinterpretation of 1-8-3 has cost us all but whats left of our freedoms. The Supreme Court is a political puppet now and it may be time for another revolution, an intellectual one. Great, great article love the quotes to support the argument and agree. Down with 1-8-3!
“Mr. Madison also explained the regulation of commerce among the States was strictly “a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government.” “
The hidden tax on Americans aka tax abatements, tax incentives, in my opinion violates the sprirt of free commerce between the states. Government entities sell out their constituants in order to attrack business to town in the form of tax abatements, etc. There is no reason to lure big box retailers, involved in interstate commerece, to locales where they are going to make money. Some thing must regulate these actions which can in some cases give one retailer and unfair advantage over another.
The trouble with regulating corporations is that the corporations control the government…catch 22
Those comments by J. Madison that commerce among the states is a “negative and preventive provision” and served as no “positive purposes of the General Government” is damaging as hell to the credibility of the court.
I would had never accepted this argument prior to reading this. It must be true else as Paul Madison points out, section ten would had directly disabled the states if a positive influence by the federal govt. over commerce was really the purpose of the language.
Gawd, I can’t believe how incompetent the supreme court really is.
This is one helluva analysis.
I really like the final results of this post. What took so long?
I always had this feeling deep inside the commerce clause was by all intents very limited because of the other limitations placed on congress. This post confirms my suspicions and as a bonus, brings harmony to the other powers/limits of congress AND THE STATES… something the supreme court never seemed able to accomplish.
This is the most magnificent explanation of the meaning to regulate commerce I have ever read, and I have read many.