Constitution Article 1 §8.3, On Intercourse

The Constitution can’t defend itself, and we can’t defend it either if we don’t know what it says. That’s why I study a little bit of it each week. There are seven articles in the Constitution, and I’m still on the first one. Article One has ten sections; I’m studying Section 8, which enumerates the powers of Congress. Last week I read Article 1 §8.3, about Congress’ ability to take on debt. Today I’ll look at Clause 3, better known as the Commerce Clause.

Article 1 §8.3

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Okay, so the Commerce Clause is a perfect example of why you can’t just read the words of the Constitution and think you get it. It sounds like a simple “Congress can do this,” type of statement. But for most of American history, its importance was in limiting the power of the states. The Annotated Constitution says there were some 1400 Supreme Court cases under the clause prior to 1900, and most of them stemmed from state legislation.

This one should please the word nerds because, apparently, a lot of the litigation came down to definition of terms.

Commerce

Once upon a time, the term commerce was narrowly understood to mean “traffic,” or the transporting of goods for sale across borders. Then, in the landmark 1824 case Gibbons v. Ogden, Chief Justice Marshall wrote

The subject to be regulated is commerce…The counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a general term, applicable to many objects, to one of its significations. Commerce, undoubtedly, is traffic, but it is something more—it is intercourse.

Yeah, go ahead, snicker. In the nearly two hundred years since Marshall wrote his opinion, use of the word “intercourse” has become as narrow as “commerce” was back then. Meanwhile, commerce has expanded. Constitutionally speaking, today “commerce” covers any movement of people and things, whether for profit or not, across state lines. It includes all commercial and non-commercial communication or transmission of intelligence, and every kind of commercial negotiation that will involve sooner or later an act of transportation of persons or things, or the flow of services or power, across state lines or even within states if there could be an interstate impact.

So…basically, all the things. All. The. Things.

There are quite a lot of examples of SCOTUS trying to curb Congressional power by carving out exceptions to the definition of “commerce.” It’s an understandable impulse, because, well  – All. The. Things. The Commerce Clause feels like a departure from all the careful checks and balances. But when you look at those carve-outs (I won’t dig into them here, but there’s a nice summary in the Annotated Constitution on page 178-179) sound a little silly. You read through them and think, “That is too commerce.”

Regulate

Well, last week it seems like we learned that “tax” and “regulate” are surprisingly close bedfellows, but here we find there has bee a great deal more inquiry into exactly what it means to regulate. Marshall weighed in on this definition in Ogden, too, and he was generous:

It is the power to … prescribe the rule by which commerce is to be governed. 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 . . . If, as has always been understood, the sovereignty of congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several states, is vested in Congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the constitution of the United States.

In fact, the bulk of federal criminal legislation depends upon the Commerce Clause and requires the crossing of a state line – identical crimes committed within a single state and affecting only that state are outside of federal jurisdiction.

Necessary and Proper

The Necessary and Proper clause is relevant to this clause, as it is to all Section 8 clauses. But since it is itself a clause of Section 8, I’m not going to dig into it until I get there.

Wiggle Room

One place where the sweeping power of the Commerce Clause is still uncertain is in relation to states engaged in commercial activities that would be regulated by federal legislation if the enterprise were privately owned. In most cases, federal power has been upheld, but federal regulation of the state and local government employees has sometimes been upheld and sometimes invalidated.

Foreign Trade

So far, I’ve only talked about interstate commerce, which most people nowadays tend to think of as “commerce.” Early America’s sense of separate states as semi-foreign is mostly lost to us today. When we think of trade, we think of foreign trade.  There has always been some sense that Congress’ power over international trade was less fraught than its regulation of interstate trade, because foreign relations are clearly the role of national government. (Or at least, they were until the crisis of confidence inspired by recent events.)

There is also the widespread opinion that the two types of trade are inherently different; regulation of foreign trade is about protecting U.S. interests while interstate regulations are necessary to secure equality and freedom in commercial intercourse between the States.

However, the bulk of case law disagrees. The current and dominant interpretation is summarized in Chief Justice Taney’s 1847 License Cases decision:

The power to regulate commerce among the several States is granted to Congress in the same clause, and by the same words, as the power to regulate commerce with foreign nations, and is coextensive with it.

So there you have it.