Founders and 19th Century Quotes on the Commerce Clause

"The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

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

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And

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."

Article I, Section 8
National Archives and Records Administration
September 17, 1787
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Library Topic: Regulations in America
Library Topic: Constitutional Limits

"Perhaps it may be thought, that the power of regulation will be left placed in the governments of the several states, and that a general superintendence is unnecessary. If the states had distinct interests, were unconnected with each other, their own governments would then be the proper and could be the only depositaries of such a power; but as they are parts of a whole with a common interest in trade, as in other things, there ought to be a common direction in that as in all other matters."

Alexander Hamilton
April 18, 1782
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"You know Sir that the Spirit of Commerce is a Spirit of Avarice, and that whenever the power is given the will certainly follows to monopolise, to engross, and to take every possible advantage. I am free therefore to own that I think it both safest & best to give no such power to Congress, leave it to that Body to point out what is fit to be done in this [line], and founding their plans on principles of moderation and most accordant to the actual state & situation of the different States, to recommend their systems for the general adoption. I am persuaded that this plan would be successful to every good purpose. A contrary one would, I verily believe, be more hurtful, much more hurtful to us, than even the crabbed selfish system of Great Britain."

Richard Henry Lee
October 10, 1785
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"The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States.

If the new Constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS."

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"The degree in which a measure is necessary, can never be a test of the legal right to adopt it; that must be a matter of opinion, and can only be a test of expediency. The relation between the measure and the end; between the nature of the mean employed toward the execution of a power, and the object of that power must be the criterion of constitutionality, not the more or less of necessity or utility."

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"To 'regulate commerce with foreign nations, and among the States, and with the Indian tribes.' To erect a bank, and to regulate commerce, are very different acts. He who erects a bank, creates a subject of commerce in its bills, so does he who makes a bushel of wheat, or digs a dollar out of the mines; yet neither of these persons regulates commerce thereby. To make a thing which may be bought and sold, is not to prescribe regulations for buying and selling. Besides, if this was 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. For the power given to Congress by the Constitution does not extend to the internal regulation of the commerce of a State, (that is to say of the commerce between citizen and citizen,) which remain exclusively with its own legislature; but to its external commerce only, that is to say, its commerce with another State, or with foreign nations, or with the Indian tribes. Accordingly the bill does not propose the measure as a regulation of trace, but as 'productive of considerable advantages to trade.' Still less are these powers covered by any other of the special enumerations."

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"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. For the power given to Congress by the Constitution does not extend to the internal regulation of the commerce of a State, (that is to say of the commerce between citizen and citizen,) which remain exclusively with its own legislature; but to its external commerce only, that is to say, its commerce with another State, or with foreign nations, or with the Indian tribes."

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"The conduct of Great-Britain in declining any commercial treaty with America, at that time, was unquestionably dictated at first by a knowledge of the inability of congress to extort terms of reciprocity from her; and of that want of unanimity among the states, which, under the existing confederation, was a perpetual bar to any restriction upon her commerce with the whole of the states; and any partial restriction would be sure to fail of effect."

St. George Tucker
The Founders' Constitution
The University of Chicago Press
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"Having repeatedly noticed the defect of the former confederation, in respect to the regulation of the commerce between the several states, and the inconveniences resulting from it, I shall only mention one not yet touched upon: I mean the burthens which might be imposed by some of the states, on others, whose exports, and imports must necessarily pass through them. Thus a duty on salt imported into Virginia, or on tobacco exported from thence, might operate very extensively as a tax upon the citizens of the western parts of North Carolina and Tennessee, to the exclusive emolument of the state of Virginia. So unreasonable an advantage ought not to prevail among members of the same confederacy, and without a power to control it lodged somewhere, it would be impossible that it should not be exerted: the repetition of such exertions could scarcely fail to lay the foundation of irreconcileable jealousies, and animosities among the states. And it was evidently with a view to prevent these inconveniences, that the constitution provides that no state shall, without the consent of congress, lay any imposts, or duties on exports or imports, except what may be absolutely necessary for executing it's inspection laws."

St. George Tucker
The Founders' Constitution
The University of Chicago Press
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"The care, protection, management and controul, of this great national concern, is, in my opinion, vested by the constitution, in the congress of the United States; and their power is sovereign, relative to commercial intercourse, qualified by the limitations and restrictions, expressed in that instrument, and by the treaty making power of the president and senate. 'Congress shall have power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.' Such is the declaration in the constitution. Stress has been laid, in the argument, on the word 'regulate,' as implying, in itself, a limitation. Power to regulate, it is said, cannot be understood to give a power to annihilate. To this it may be replied, that the acts under consideration, though of very ample extent, do not operate as a prohibition of all foreign commerce. It will be admitted that partial prohibitions are authorized by the expression; and how shall the degree, or extent, of the prohibition be adjusted, but by the discretion of the national government, to whom the subject appears to be committed? Besides, if we insist on the exact and critical meaning of the word 'regulate,' we must, to be consistent, be equally critical with the substantial term, 'commerce.' The term does not necessarily include shipping or navigation; much less does it include the fisheries. Yet it never has been contended, that they are not the proper objects of national regulation; and several acts of congress have been made respecting them. It may be replied, that these are incidents to commerce, and intimately connected with it; and that congress, in legislating respecting them, act under the authority, given them by the constitution, to make all laws necessary and proper, for carrying into execution the enumerated powers. Let this be admitted; and are they not at liberty, also, to consider the present prohibitory system, as necessary and proper to an eventual beneficial regulation? I say nothing of the policy of the expedient. It is not within my province. But, on the abstract question of constitutional power, I see nothing to prohibit or restrain the measure."

District Judge David
The University of Chicago Press
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"Further, the power to regulate commerce is not to be confined to the adoption of measures, exclusively beneficial to commerce itself, or tending to its advancement; but, in our national system, as in all modern sovereignties, it is also to be considered as an instrument for other purposes of general policy and interest. The mode of its management is a consideration of great delicacy and importance; but, the national right, or power, under the constitution, to adapt regulations of commerce to other purposes, than the mere advancement of commerce, appears to me unquestionable."

District Judge David
The Founders' Constitution
The University of Chicago Press
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"1. As to the power to regulate commerce.

This power is not, in express terms, exclusive, and the only prohibition upon the states is, that they shall not enter into any treaty or compact with each other, or with a foreign power, nor lay any duty on tonnage, or on imports or exports, except what may be necessary for executing their inspection laws. Upon the principles above laid down, the states are under no other constitutional restriction, and are, consequently, left in possession of a vast field of commercial regulation; all the internal commerce of the state by land and water remains entirely, and I may say exclusively, within the scope of its original sovereignty. The congressional power relates to external not to internal commerce, and it is confined to the regulation of that commerce."

Ch. J. Kent
The Founders' Constitution
The University of Chicago Press
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"The grant to the appellants may, then, be considered as taken subject to such future commercial regulations as congress may lawfully prescribe. Congress, indeed, has not any direct jurisdiction over our interior commerce or waters. Hudson river is the property of the people of this state, and the legislature have the same jurisdiction over it that they have over the land, or over any of our public highways, or over the waters of any of our rivers or lakes. They may, in their sound discretion, regulate and control, enlarge or abridge the use of its waters, and they are in the habitual exercise of that sovereign right. If the constitution had given to congress exclusive jurisdiction over our navigable waters, then the argument of the respondents would have applied; but the people never did, nor ever intended, to grant such a power; and congress have concurrent jurisdiction over the navigable waters no further than may be incidental and requisite to the due regulation of commerce between the states, and with foreign nations."

Ch. J. Kent
The Founders' Constitution
The University of Chicago Press
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"The first question then is, whether this act, or either section of it, is repugnant to the power granted to congress to regulate commerce? Commerce with foreign nations, and among the several states, can mean nothing more than intercourse with those nations, and among those states, for purposes of trade, be the object of the trade what it may; and this intercourse must include all the means by which it can be carried on, whether by the free navigation of the waters of the several states, or by a passage over land through the states, where such passage becomes necessary to the commercial intercourse between the states. It is this intercourse which congress is invested with the power of regulating, and with which no state has a right to interfere. But this power, which comprehends the use of, and passage over the navigable waters of the several states, does by no means impair the right of the state government to legislate upon all subjects of internal police within their territorial limits, which is not forbidden by the constitution of the United States, even although such legislation may indirectly and remotely affect commerce, provided it do not interfere with the regulations of congress upon the same subject. Such are inspection, quarantine, and health laws; laws regulating the internal commerce of the state; laws establishing and regulating turnpike roads, ferries, canals, and the like."

Curcuit Justice Washington
The Founders' Constitution
The University of Chicago Press
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"[The commerce power] is the power to regulate, that is, 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."

Chief Justice John Marshall
U.S. Supreme Court
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"Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse. ..

It is not intended to say that these words comprehend that 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. Such a power would be inconvenient, and is certainly unnecessary."

Chief Justice John Marshall
U.S. Supreme Court
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"[The Constitution] contains an enumeration of powers expressly granted by the people to their government. It has been said that these powers ought to be construed strictly. But why ought they to be so construed? Is there one sentence in the Constitution which gives countenance to this rule? In the last of the enumerated powers, that which grants expressly the means for carrying all others into execution, Congress is authorized 'to make all laws which shall be necessary and proper' for the purpose. But this limitation on the means which may be used is not extended to the powers which are conferred, nor is there one sentence in the Constitution which has been pointed out by the gentlemen of the bar or which we have been able to discern that prescribes this rule. We do not, therefore, think ourselves justified in adopting it. What do gentlemen mean by a 'strict construction?' If they contend only against that enlarged construction, which would extend words beyond their natural and obvious import, we might question the application of the term, but should not controvert the principle. If they contend for that narrow construction which, in support or some theory not to be found in the Constitution, would deny to the government those powers which the words of the grant, as usually understood, import, and which are consistent with the general views and objects of the instrument; for that narrow construction which would cripple the government and render it unequal to the object for which it is declared to be instituted, and to which the powers given, as fairly understood, render it competent; then we cannot perceive the propriety of this strict construction, nor adopt it as the rule by which the Constitution is to be expounded. As men whose intentions require no concealment generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said. ...We know of no rule for construing the extent of such powers other than is given by the language of the instrument which confers them, taken in connexion with the purposes for which they were conferred.

The words are, 'Congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.'

The subject to be regulated is commerce, and our Constitution being, as was aptly said at the bar, one of enumeration, and not of definition, to ascertain the extent of the power, it becomes necessary to settle the meaning of the word. 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. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse. The mind can scarcely conceive a system for regulating commerce between nations which shall exclude all laws concerning navigation, which shall be silent on the admission of the vessels of the one nation into the ports of the other, and be confined to prescribing rules for the conduct of individuals in the actual employment of buying and selling or of barter.

If commerce does not include navigation, the government of the Union has no direct power over that subject, and can make no law prescribing what shall constitute American vessels or requiring that they shall be navigated by American seamen. Yet this power has been exercised from the commencement of the government, has been exercised with the consent of all, and has been understood by all to be a commercial regulation. All America understands, and has uniformly understood, the word 'commerce' to comprehend navigation. It was so understood, and must have been so understood, when the Constitution was framed. The power over commerce, including navigation, was one of the primary objects for which the people of America adopted their government, and must have been contemplated in forming it. The convention must have used the word in that sense, because all have understood it in that sense, and the attempt to restrict it comes too late."

Chief Justice John Marshall
U.S. Supreme Court
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"In the construction of the power to regulate commerce, the court held, that the term meant, not only traffic but intercourse, and that it included navigation, and the power to regulate commerce was a power to regulate navigation. Commerce among the several states, meant commerce intermingled with the states, and which might pass the external boundary line of each state, and be introduced into the interior. It was admitted, that the power did not extend to that commerce which was completely internal, and carried on between different ports of the same state, and which did not extend to, or affect other states. The power was restricted to that commerce which concerned more states than one, and the completely internal commerce of a state was reserved for the state itself."

James Kent
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"But if a coasting license, founded on the power in congress to regulate commerce among the several status, be held to imply a right to navigate regularly and permanently between two ports or places within the same state, and to allow the vessel to be confined essentially, and for all business purposes, entirely to the waters of the state, then there would be no distinction between commerce among the several states, and commerce confined entirely and exclusively within a state; and all state jurisdiction over its purely internal commerce would be utterly destroyed. This was never intended by the constitution, and it is what the Supreme Court itself appears to have disclaimed."

James Kent
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"The oppressed and degraded state of commerce previous to the adoption of the Constitution can scarcely be forgotten. It was regulated by foreign nations with a single view to their own interests, and our disunited efforts to counteract their restrictions were rendered impotent by want of combination. Congress indeed possessed the power of making treaties, but the inability of the federal government to enforce them had become so apparent as to render that power in a great degree useless. Those who felt the injury arising from this state of things, and those who were capable of estimating the influence of commerce on the prosperity of nations, perceived the necessity of giving the control over this important subject to a single government."

Chief Justice John Marshall
U.S. Supreme Court
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"Commerce is intercourse; one of its most ordinary ingredients is traffic. It is inconceivable that the power to authorize this traffic, when given in the most comprehensive terms with the intent that its efficacy should be complete, should cease at the point when its continuance is indispensable to its value. To what purpose should the power to allow importation be given unaccompanied with the power to authorize a sale of the thing imported? Sale is the object of importation and is an essential ingredient of that intercourse, of which importation constitutes a part. It is as essential an ingredient, as indispensable to the existence of the entire thing, then, as importation itself. It must be considered as a component part of the power to regulate commerce. Congress has a right not only to authorize importation, but to authorize the importer to sell.

If this be admitted, and we think it cannot be denied, what can be the meaning of an act of Congress which authorizes importation and offers the privilege for sale at a fixed price to every person who chooses to become a purchaser?"

Chief Justice John Marshall
U.S. Supreme Court
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"For a like reason, I made no reference to the 'power to regulate commerce among the several States.' I always foresaw that difficulties might be started in relation to that power which could not be fully explained without recurring to views of it, which, however just, might give birth to specious though unsound objections. Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it. Yet it is very certain that it 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."

James Madison
The Founders' Constitution
The University of Chicago Press
February 13, 1829
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"[The question 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 wages 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. When duties are laid, not for purposes of revenue, but of retaliation and restriction, to countervail foreign restrictions, they are strictly within the scope of the power, as a regulation of commerce. But when laid to encourage manufactures, they have nothing to do with it. The power to regulate manufactures is no more confided to congress, than the power to interfere with the systems of education, the poor laws, or the road laws of the states. It is notorious, that, in the convention, an attempt was made to introduce into the constitution a power to encourage manufactures; but it was withheld. Instead of granting the power to congress, permission was given to the states to impose duties, with the consent of that body, to encourage their own manufactures; and thus, in the true spirit of justice, imposing the burthen on those, who were to be benefited."

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"What can Congress do that the Supreme Court would find unconstitutional? Or, what can Congress do that a president would veto as unconstitutional? It is not much exaggeration to say that Congress can do whatever it can muster a majority vote for, whether it is constitutional or not. The members only have to worry about...

"If it's an economic decision, the federal government can make it for you. That's the takeaway from a ruling this afternoon by a federal judge in Michigan.

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"Is Congress going through the ordeal of trying to enact health-care reform only to have one of the main pillars--requiring individuals to obtain insurance--declared unconstitutional? An interesting debate for a constitutional law seminar. In the real world, not a big worry.

But it's being taken seriously in some quarters, so it'...

"Most of us recall from our civics classes the quaint notion that our federal government is one of 'limited' and 'enumerated' powers. We might also remember that James Madison, in his Federalist No. 45, assured skeptics of a central government that '[t]he powers delegated by the proposed Constitution to the Federal...

"The Supreme Court confirmation hearings for Elena Kagan provided key exchanges about the Commerce Clause, natural rights, and other issues that have convinced me to vote against her nomination. Based on her own testimony, she'll violate her oath as soon as she's sworn in.

The hearings, though, were not merely about Elena Kagan...

Despite a few recent rulings declaring the Patient Protection and Affordable Care Act unconstitutional, Ian Millhiser insists that the Act is not outside constitutional bounds. Millhiser argues that Congress has power to tax, "regulate the...

This page provides an excellent history of the Commerce Clause and the different ways it has been used to justify various forms of American legislation.

"Last week the Supreme Court ruled in United States v. Comstock et al. that Congress has the constitutional authority to empower federal district courts to civilly commit dangerous sex offenders who had completed their sentences. In effect, the courts can mandate indefinite confinement...

"The hottest ticket in Washington last week was to the Supreme Court, where seats had long been 'sold out' to hear oral argument in the case of United States v. Morrison. At issue is the constitutionality of the Violence Against Women Act (VAWA), which alone would explain the interest. But those focused on the feminist angle are missing the main event. At bottom,...

"Those opposing health care reform are increasingly relying on an argument that has no legal merit: that the health care reform legislation would be unconstitutional. There is, of course, much to debate about how to best reform America's health care system. But there is no doubt that bills passed by House and Senate committees are constitutional.


"Last week, I asked South Carolina Congressman James Clyburn, the third-ranking Democrat in the House of Representatives, where in the Constitution it authorizes the federal government to regulate the delivery of health care. He replied: 'There's nothing in the Constitution that says that the federal government has anything to do with most of the stuff we do.' Then...

"The Supreme Court's recent decision saying that the federal government can prosecute those using marijuana for medical purposes, even when state laws permit such use, has been seen by many as an issue of being for or against marijuana. But the real significance of this decision has little to do with marijuana and everything to do with the kind of government that...

"Did you know that a federal judge has handed down a ruling on health reform saying the new legislation is not only constitutional, but also effectively says that your thought processes, which lead to your choices, can now be regulated by the federal government?

Yes you read that right."

"Supposing for the moment that we thought it were a good idea on policy grounds, would it be within the power of Congress to set ground rules for online advertisers who gather personal data from Web browsers? Recall that there are two particular rules that I've said I'd be tentatively open to, but which Jim rejects: a requirement of notice when information is being...

"As the challenge to Obamacare's constitutionality approaches the Supreme Court, the question on everyone's mind is: How will Anthony Kennedy vote? But perhaps we should also ask: How will Antonin Scalia vote? Scalia is known as one of the Court's most conservative justices, but a concurrence he wrote in a 2005 case should give opponents of the health-care law...

"Maybe it was a matter of timing (Monica's book was just hitting the stands), but when a federal appeals court declared the Violence Against Women Act (VAWA) unconstitutional last week it didn't get much attention. In fact, it may be the most important court case this year, because it sharply limits the ability of Congress to create categories of lawsuits....

"Remember when the Commerce Clause challenge to the individual insurance mandate was dismissed by all serious and knowledgeable constitutional law professors and Nancy Pelosi as 'frivolous'? Well, as Jonathan notes below, the administration is now apparently telling the New York Times that the individual insurance 'requirement' and 'penalty' is really an exercise...

"In 2005 the Supreme Court said the federal government's power to 'regulate commerce…among the several states' extends to the tiniest speck of marijuana wherever it may be found, even in the home of a patient who grows it for her own medical use in compliance with state law. 'If Congress can regulate this under the Commerce Clause,' Justice Clarence Thomas warned...

"Last night's passage of the greatest expansion of the federal government since the Great Society is a sad day for our country, not only because it may bankrupt our future, but also because we have no recourse to the Constitution. Our Constitution was elegantly designed to protect individuals from too much concentration of power in any one source, but the Supreme...

"For supporters of Obamacare, Judge Henry Hudson's decision yesterday that the individual mandate is unconstitutional was a firebell in the night, to borrow Jefferson's phrase.

They had dismissed arguments that the mandate is unconstitutional as ravings from the right-wing fringe, but here is a...

"In 1990, the U.S. Congress passed a law forbidding possession of a firearm within 1,000 feet of any school. The Gun-Free School Zones Act was touted as a blow on behalf of education and against violence among children. Two years later, Alfonso Lopez Jr., a 12th-grader at Edison High School in San Antonio, Texas, carried a concealed .38-caliber pistol to school....

"Once President Barack Obama and Democrats in Congress have passed a health care reform bill, conservative groups are likely to challenge parts of it as unconstitutional, arguing that it oversteps Congress's powers. A key target will be the individual mandate, which is designed to coax uninsured persons into purchasing insurance.


"James Madison once described the judiciary as 'an impenetrable bulwark against every assumption of power in the legislative or executive.' Had he lived to see the Supreme Court's sweeping definition of congressional power under the Commerce Clause, he might have revised that statement."

Commerce was universally regulated through taxes on imported trade by both States and Nations and not through laws over commercial activity.

"The verdict in Gonzales v. Raich last week was a stunning victory for federal power, and it came with an unusual endorsement. The Court upheld Drug Enforcement Agency prosecution of sick women who use medical marijuana to treat symptoms of their illnesses. Siding with the DEA, six justices held that the Commerce Clause of the U.S. Constitution (which gives the...

"Two federal district court judges have ruled that Congress exceeded its constitutional authority under the U.S. Constitution's commerce clause when it included the so-called individual mandate in the recent health-care act.

That makes the score on this issue among district court judges 3-2 in favor of the mandate. Given the...

Analysis Report White Paper

Randy E. Barnett analyzes the original intent behind the word "commerce" and seeks to understand whether the Founders meant it as "any gainful activity" or in the narrower sense of only "buying and selling." Barnett concludes that the Founders, in the Constitutional Convention and the Ratification Debates, only meant it in the narrow sense.

"Contemporary originalist readings have tended to view the commerce power through modern eyes. Originalists defending narrow readings of federal power have identified 'commerce' with the trade of commodities; originalists defending broad readings of federal power have identified 'commerce' with all gainful economic activity."

"Jack Balkin's article Commerce fails to consider the full range of evidence and thereby attributes to the Constitution's Commerce Clause a scope that virtually no one in the Founding Era believed it had."

"In recent years, the Supreme Court has for the first time since the New Deal begun to rein in Congress’s power under the commerce clause. While such developments are welcome, Congress, as a co-equal branch of government, need not take its cues from the Supreme Court and should take the lead in restoring its own limits to the commerce power."

"Last spring the U.S. Supreme Court struck down as unconstitutional a key section of the 1994 Violence Against Women Act (VAWA). That section allowed a victim of rape or other violence 'motivated by gender' to sue the perpetrator for civil damages in federal court for violating her civil rights."

"At bottom, then, Lopez is not about gun control or even about federal-state relations but about whether the Court is ready to hold Congress to its constitutional limits. The Court should. For if the enumerated powers doctrine is in fact dead, other constitutional protections are in jeopardy as well."

"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 problem."

"The Court's opinion in United States v. Lopez sent shock waves through official Washington, not least because Washington had simply assumed, since the era of the New Deal, that its regulatory powers were plenary."

As part of his analysis, Roland points out that the meanings of words such as "commerce" or "regulate" did not have the same meaning in the 18th century as they do today, thus concluding that the Founders never intended for the Commerce Clause (Article I, Section 8) to be interpreted as broadly as it is today.

"The Supreme Court's modern interpretation of the Necessary and Proper Clause in the realm of interstate commerce is textually problematic, unfaithful to the Constitution's original meaning, and contains positive incentives for Congress to over-regulate."

"The Commerce Clause of the U.S. Constitution has been used to justify a wide expansion of government power, from antidiscrimination laws to drug prohibition to a ban on guns near schools."

"Through this new understanding of the power of the commerce clause, 20th century America sees unprecedented growth in federal regulation and criminalization on numerous fronts of civil society. This understanding continued until about 1995, when the Supreme Court struck down the Gun Free School Zones Act as unconstitutional."

"Starting in 2014, the recently enacted Patient Protection and Affordable Care Act (PPACA, P.L. 111-148) will require most U.S. residents to purchase health insurance or pay a financial 'penalty' to the government. This provision, popularly called the individual mandate, is the linchpin of some of the PPACA's most significant reforms."

"In this article I have inquired into the meaning of the legal term 'commerce' at the time the Constitution was written, debated, and ratified."

"In the original debates over adoption of the Constitution, 'regulation of commerce' was used, almost exclusively, as a cover of words for specific mercantilist proposals related to deep-water shipping and foreign trade."

"Even the staunchest free trader might reluctantly concede that the apparatus of protectionism—tariffs, import quotas, and anti-dumping duties—is constitutional because clause 3 of Article I, Section 8, of the U.S. Constitution delegates to Congress ' regulate commerce with foreign nations...'"

"The federal government was supposed to be limited to a few defined powers. The Tenth Amendment to the Constitution—'The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people'—confirms it."


"If Obamacare can mandate the purchase of health insurance, could it in theory also mandate the purchase of broccoli?" That's the question up being asked in this debate between Ilya Shapiro from the Cato Institute and Mark Hall from Wake Forest University.

This podcast discusses the Commerce Clause and Obamacare and whether or not the latter's individual mandate is constitutional. To paraphrase Robert Levy, this is the first time that the government has mandated the purchase of anything, and if they can do it in one place, they can do it anywhere.

"Wine wholesalers say an epidemic of alcohol awaits if the U.S. allows for the deregulation of wine distribution. But there's no reason, constitutional or otherwise, for wholesalers to maintain a death-grip on the movement of booze from one place to another. Ilya Shapiro, senior fellow of Constitutional Studies at the Cato Institute offers his thoughts."

"At the heart of the case against ObamaCare is the assertion that it's a violation of the Commerce Clause of the Constitution, which is supposed to allow the federal government to assure that commerce is regular. So why do so many conservatives believe that the commerce clause must be reigned in for ObamaCare, but viewed expansively when it comes to states setting...

"Judge Napolitano discusses a primary vehicle for expansion of federal authority and the demise of individual liberty, the Commerce Clause."

Legal expert Randy Barnett testifies before the Senate Judiciary Committee regarding the Commerce Clause and its application in the healthcare debate.

In this video, conservative pundit Ann Coulter weighs in on the individual mandate portion of "Obamacare" in her usual inflammatory style. She argues that if the commerce clause does indeed give Congress the authority to mandate that people purchase health insurance, Republicans should also mandate gun and Bible ownership as well.

In this video, Ilya Somin from George Mason University explains how the individual mandate is not justified under the Interstate Commerce Clause.

In this video, Sen. Coburn asks then Supreme Court Justice Nominee Elena Kagan about the limits of the Commerce Clause.

"Recently, Kathleen Sebelius spoke at the National Press Club in Washington, D.C. When asked by a correspondent where does the government get the power to mandate that the Americans purchase health insurance, her response was 'I am not a lawyer' and plans to leave that up to the Department of Justice (DOJ)."

"Down on the boardwalk, we interview a few young Americans to find out what they know about the Constitution of the United States. Can you answer the questions? Does it matter?"

"The Patient Protection and Affordable Care Act (Obamacare) has set forth an individual mandate that requires all Americans to have health insurance. The justification for the law rests on the idea developed since the New Deal in the 1930s that any economic activity an individual engages in could impact the national economy and therefore can be regulated by the Federal Government based on its...

"As part of our Operation Health Freedom series, Judge Andrew Napolitano looks at health care and a justified use of Congress' interstate commerce regulation power."

"The individual mandate in ObamaCare represents a dramatic and unprecedented expansion of federal power. Randy Barnett, Cato Institute Senior fellow and a constitutional law professor at the Georgetown University Law Center, argues on C-SPAN that the Commerce Clause grants the federal government no such authority."

In this video, Roger Pilon, Director of the Center for Constitutional Studies at the Cato Institute, discusses the Interstate Commerce Clause with Judge Andrew Napolitano on the television show "Freedom Watch."

According to this video, one of the leading challenges of Obamacare has to do with the individual mandate and its relation to the Commerce Clause in the Constitution. This video describes the background of the Commerce Clause and whether or not the Obamacare law violates the Clause.

Primary Document

This case from 1935 marks one of the many times that the Supreme Court struck down New Deal legislation, this time dealing with the National Industrial Recovery act. The court ruled unanimously that the provisions of federal regulation authorized in this law were unconstitutional, as the Commerce Clause did not provide Congress with the power to regulate price and...

"In his piercing introduction to An Economic Interpretation the author wrote that 'whoever leaves economic pressures out of history or out of discussion of public questions is in mortal peril of substituting mythology for reality.' It was Beard's view that the founding fathers, especially Madison, Jay, and Hamilton, never made such a miscalculation. Indeed, these statesmen placed...

This case centered around two facets of the Constitution: the Commerce Clause and the regulation of taxes on imports. Chief Justice Marshall offered the opinion of the Court in this case, concluding with following statement:

"It has been contended that this construction of the power to regulate commerce, as was contended in construing the prohibition to...

James Kent was an American legal scholar. Widely popular, his Commentaries consist of a series of lectures on the history of law, the American Constitution, federal and municipal law, and laws concerning persons and property.

The reader must not expect to find in these pages any novel views, and novel constructions of the Constitution.

“In this case, the Commonwealth of Virginia …, through its Attorney General, challenges the constitutionality of the pivotal enforcement mechanism of the health care scheme adopted by Congress in the Patient Protection...

"We may summarize our view of constitutional government by saying that its ultimate and essential objects are:

1st. To bring the active and planning will of each part of the government into accord with the prevailing popular thought and need, in order that government may be the impartial instrument of a symmetrical national...

In this piece, Alexander Hamilton discusses the concept of trade regulation. Hamilton argues that the power to regulate trade should be held by Congress and the federal government. This treatise was written before the Constitution was adopted as the supreme law of the land, so it provides some historical insight into the arguments used by supporters of a federal...

The case of Corfield v. Coryell revolved around the issue of whether or not a certain vessel was at fault for taking oysters from an alleged New Jersey river. Among other things, it was argued that the detainment of the vessel was a violation of the...

Gibbons v. Ogden is considered a landmark supreme court case on the issue of the Interstate Commerce Clause. Aaron Ogden was given an exclusive license to operate a shipping business within the State of New York. He sued a man named Thomas Gibbons, who ran a competing shipping business between New Jersey and New York City, claiming that Gibbon's operations in the...

This Supreme Court case deals with how the Commerce Clause gives the federal government the right to criminalize the growing and personal usage of marijuana, even when these actions are in accordance to state law. 

California's Compassionate Use Act allows people to use limited amounts of marijuana for strictly medicinal...

Hamilton's reasoning for the creation of a national bank is that it falls under the implied powers of Congress and would better the country for the American people.

Heart of Atlanta Motel was a motel in Atlanta, Georgia that would not rent rooms to black men and women. When the Civil Rights Act was passed, the owner of the motel sued, arguing that Congress did not have the right to regulate his motel under the interstate commerce clause.

The Supreme Court ruled that not only did Congress...

In this brief portion of a letter written by James Madison to Joseph Cabell, Madison discusses his own understanding of the purpose and intent of the Commerce Clause. He believed that it was primarily put into the Constitution in order to prevent the individual states from levying import duties and tariffs on each other.

This brief introduction to James Madison's arguments against the Articles of Confederation highlights the problem of the individual states levying tariffs against each other. Madison argued that because Congress did not have an overarching power to regulate commerce under the Articles of Confederation, the individual states ended up behaving like economic rivals,...

Jefferson argues against the creation of a national bank on the grounds that it is not one of the delegated powers given to Congress under the Constitution.

Livingston v. Van Ingen is another case which centered around the question of the Commerce Clause and the rights it does or does not grant to Congress. In general, the opinion of this court is that Congress has a right to regulate "external" commerce and that...

The U.S. Supreme Court's highly anticipated decision which upheld the Affordable Care Act.

This case effectively marked the end of the Supreme Court's resistance to FDR's New Deal programs and legislation. Allegedly responding to Roosevelt's court packing threat, the Supreme Court ruled that the National Labor Relations Act of 1935 (The Wagner Act) was indeed constitutional.

Chief Justice Hughes ruled for an expansive...

In the 12th chapter of the book, Construction Construed and Constitutions Vindicated, John Taylor outlines his opinions and constitutional views regarding the General Welfare and the Congressional power to regulate Commerce.

This treatise, written by the United States' first Secretary of the Treasury, shows the word "commerce" to be a synonym for "trade" and not a catch-all phrase for economic activity. Alexander Hamilton believed in a strong central government and constantly tried to expand the role of the federal government, yet he understood that the word "commerce" did not refer to...

This letter from Richard Henry Lee to an unknown source briefly outlines Lee's opposition to the idea of giving Congress the power to regulate commerce. He believes that Congress will end up taking regulatory action that damages the southern economy while bolstering the northern economy.

Describing the Commerce Clause, St. George Tucker notes that the Clause was enacted in order "to suppress those jealousies, which must inevitably have arisen among the states, had any tax or duty been laid upon any particular...

In January 2011, U.S. District Judge Roger Vinson declared that "'The Patient Protection and Affordable Care Act' [is] unconstitutional." Judge Vinson's decision was carefully thought out and related to the Constitutional "Commerce Clause." Vinson also made an...

In August of 2011, the Eleventh Circuit Court of Appeals declared that parts of the PPACA were unconstitutional. This decision addresses the constitutionality of the Individual Mandate portion of Obamacare, as well as the difference between a tax and a penalty in relation to the PPACA's implementation.

In this case the Supreme Court ruled that a meatpacking plant, as part of the "current of commerce" between states, was subject to congressional regulation. According to the Court, Congress has the power to regulate commerce even if the commerical activity is localized, so long as it could eventually become part of interstate trade.

"HAVING shown that no one of the powers transferred to the federal government is unnecessary or improper, the next question to be considered is, whether the whole mass of them will be dangerous to the portion of authority left in the several States."

The Constitution of the United States established the federal governmental system currently in place with three branches of government. The premise of executive privilege developed from the separation of powers clause.

In this treatise, Thomas Paine manifests the understanding of the word "commerce" during the time of the writing of the Constitution. To the men of this era, the word "commerce" implied trade or the buying and selling of goods; it had no logical connection to production or activity. This is best shown in the paragraph below, where Paine speaks to the strength of...

This is considered a landmark case as it was the first time since the New Deal that federal legislation claiming authority under the commerce clause was overturned. 

Chief Justice William Rehnquist wrote the majority opinion for this case, declaring that the Gun-Free School Zones Act of 1990 was unconstitutional because...

Chief Justice Rehnquist delivered the majority opinion in this case, ruling that the Violence Against Women Act of 1994 was unconstitutional. This law gave victims of gender-motivated crimes the right to sue for damages in federal court. In this instance, the court ruled that the Commerce Clause and Fourteenth Amendment did not give Congress the authority to enact...

This court decision discusses Congressional boundaries in regulating U.S. commerce, particularly in relation to foreign commerce. Judge Davis seems to conclude that Congress has a perfect right to regulate commerce - if only for a short time - if...

This Supreme Court case is regarded as the case that threw open the doors of federal government regulation. Whenever the constitutional authority of Congress to regulate interstate commerce is brought up, legal scholars and analysts point to this case, which gives Congress the authority to regulate almost anything it wants to regulate.


This case revolved around the construction of a dam in the state of Delaware which was subsequently damaged by a sailing vessel. The accident caused some to suggest that Delaware had defied the Commerce Clause by building the dam. Chief Justice Marshall, however, declared...