The Federalist Papers, the Commerce Clause, and federal tort reform.

Author:Taylor, Paul

In the modern era, Congress has enacted many federal "tort reform" statutes (2) that supersede contrary state laws, and judicial precedents leave little doubt as to their constitutionality. (3) Even President Ronald Reagan, known for his

deference to the states, (4) established a special task force to study the need for tort reform that concluded the federal government should address the modern tort liability crisis in a variety of ways. (5) Still, some question the appropriate constitutional role of Congress in enacting federal tort reform. (6) This Article explores the support for federal tort reform found in the constitutional principles articulated by James Madison, Alexander Hamilton, and other leading founding figures, with particular emphasis on the Federalist Papers.


When Virginia, led by Madison and four other commissioners, first initiated the movement that led to the drafting of the Constitution, its sole purpose was "to consider how far a uniform system in their commercial regulations may be necessary to their common interest and their permanent harmony." (7) This proposal led to the Annapolis Convention, which in turn called for the Philadelphia Convention of 1787. (8)

At the Philadelphia Convention, before the powers of the federal government were enumerated separately in Article I, Section 8, of the Constitution, a general description of the purpose of those powers was adopted by the Constitutional Convention in what has become known as "Resolution VI." On May 29, 1787, Edmund Randolph, who led the Virginia delegation along with James Madison, "[r]esolved ... that the National Legislature ought to be impowered ... to legislate in all cases ... in which the harmony of the United States may be interrupted by the exercise of individual Legislation." (9) That portion of Randolph's motion was agreed to without debate or dissent. (10) As Madison later made clear, "It can not be supposed that these descriptive phrases [in Resolution VI] were to be left in their indefinite extent to Legislative discretion" and that "[a] selection & definition of the cases embraced by them was to be the task of the Convention" in approving the more specific enumeration of congressional powers in Article I, Section 8, of the Constitution. (11) Still, as we will see, even after the Commerce Clause was drafted as a specifically enumerated congressional power, it was described by Madison in the Federalist Papers as necessary toward the "[m]aintenance of harmony and proper intercourse among the States." (12) And Hamilton wrote in the Federalist Papers, "Whatever practices may have a tendency to disturb the harmony between the States are proper objects of federal superintendence and control." (13)

Further, on August 20, 1787, four days after the Commerce Clause had been adopted by the Constitutional Convention, Gouverneur Morris of Pennsylvania and Charles Pinckney of South Carolina, in proposing the establishment of a Council of State, described the functions of the future Secretaries of "Domestic Affairs" and "Commerce and Finance" as follows:

2. The Secretary of Domestic Affairs who shall be appointed by the President and hold his office during pleasure. It shall be his duty to attend to ... the State of Agriculture and manufactures, the opening of roads and navigations ...; and he shall from time to time recommend such measures and establishments as may tend to promote those objects.

3. The Secretary of Commerce and Finance, who shall be also appointed by the President during pleasure. It shall be his duty to superintend all matters relating to the public finances, to prepare & report plans of revenue and for the regulation of expenditures, and also to recommend such things as may in his Judgment promote the commercial interests of the U.S. (14)

While this amendment was not adopted, Madison recorded no objection to the scope of the powers proposed for the cabinet members, indicating that members of the Convention believed the Commerce Clause would grant the national government power over manufactures and agriculture in the aggregate economic interests of the union.

In sum, the Commerce Clause was intended to allow Congress the authority to help ensure that the nation operated, at least in some measure, as a uniformly well-tuned, harmonious commercial enterprise.


While there was little debate over the Commerce Clause during the Constitutional Convention debates, James Madison and Alexander Hamilton, writing under the joint anonymous pseudonym "PUBLIUS," after the famous defender of the Roman Republic, (15) produced an extended and unified written defense of the proposed Constitution that was published in newspapers around the country as the States decided whether or not to ratify the nation's supreme legal document. This comprehensive set of essays became known collectively as the Federalist Papers, and they are considered today to be the most authoritative source of the meaning of the Constitution. James Madison himself called the Federalist Papers "the most authentic exposition" on the Constitution.

In preparation for the opening of classes at the University of Virginia, which Thomas Jefferson founded, Jefferson wrote Madison regarding the teaching of the Constitution to students at the new university in a way that instructed them on the principles of government upon which the Constitution was based. Madison responded to Jefferson, stating, "The 'Federalist' may fairly enough be regarded as the most authentic exposition of the text of the federal Constitution, as understood by the Body which prepared & the Authority which accepted it." (16) The results of that correspondence and collaboration were brought forth in a meeting of the University of Virginia Board of Visitors on March 4, 1825. Jefferson, the author of the Declaration of Independence, and Madison, the father of the Constitution, were members of this Board. The following resolution, adopted by Jefferson, Madison, and the Board on that day, describes what they collectively thought were the authentic sources of American principles of government and of the Constitution, with the Federalist Papers ranking second only to the Declaration of Independence in importance:

A resolution was moved and agreed to in the following words:

Whereas, it is the duty of this Board to the government under which it lives, and especially to that of which this University is the immediate creation, to pay especial attention to the principles of government which shall be inculcated therein, and to provide that none shall be inculcated which are incompatible with those on which the Constitutions of this State, and of the United States were genuinely based, in the common opinion; and for this purpose it may be necessary to point out specially where these principles are to be found legitimately developed:

Resolved, that it is the opinion of this Board ... that on the distinctive principles of the government of our State, and of that of the United States, the best guides are to be found in,

1. The Declaration of Independence, as the fundamental act of union of these States.

2. The book known by the title of--The Federalist, being an authority to which appeal is habitually made by all, and rarely declined or denied by any as evidence of the general opinion of those who framed, and of those who accepted the Constitution of the United States, on questions as to its genuine meaning. (17)

Chief Justice John Marshall had previously written that the Federalist Papers are "of great authority," and that they should be especially deferred to where they address the powers the Constitution grants to the federal government. (18)

In the Federalist Papers, James Madison and Alexander Hamilton described the need for a new federal Constitution that gave Congress the power to regulate "Commerce ... among the Several States." (19) That power, according to the authors of the Federalist Papers, was necessary not only to allow Congress to address abuses committed by the states at the time, but also to address "future contrivances" (20) crafted by states that would similarly act to limit consumers' free access to voluntarily provided goods and services in a robust national economy, which the new Constitution empowered Congress to foster. (21)

More recently, state tort law has been used in ways that limit the flow of goods and services from state to state, and stifle innovation and the free mobility of talent necessary for a strong national economy and citizenry. This article explores the extent to which the arguments presented in the Federalist Papers, (22) many of them too often overlooked, support congressional efforts to enact federal tort reform.


Madison and Hamilton make clear in the Federalist Papers that one of the most important purposes of the new Constitution was its grant to Congress of the power to regulate commerce such that voluntarily provided goods and services could cross freely from state to state and thereby grow the new nation's economy. Indeed, Madison and Hamilton wrote that if there was one point of consensus among the citizens of the new nation, it was the importance of the development of America's free-enterprise system, and that it was Americans' commercial drive--its "adventurous" commercial "spirit"--that made its people unique. As Hamilton wrote:

The importance of the Union, in a commercial light, is one of those points about which there is least room to entertain a difference of opinion, and which has, in fact, commanded the most general assent of men who have any acquaintance with the subject.... ... [T]he adventurous spirit, which distinguishes the commercial character of...

To continue reading