Author:Weiler, Conrad J., Jr.



    This Introduction briefly discusses the significance of the Constitutional "[p]ower . . . [t]o regulate [cjommerce . . . among the several states" and argues that this, the actual language of the Constitution, was understood to have and has a broader meaning than the nearly universally accepted but quite unoriginal substitute language, "interstate commerce." Part I considers the first major interpretation of the actual words of the Constitution, in Gibbons v. Ogden, (1) and then discusses the origins and meanings of the later invented and adopted terms "interstate" and "intrastate." Part II presents data on the frequency of usage of all these terms in all Court majority opinions since 1789, and shows how "interstate commerce" has overwhelmingly been the term used by the Supreme Court since shortly after its introduction in 1869, being used about ten times more in majority opinions concerning the power to regulate commerce among the several states since roughly 1910 than the actual constitutional language. Part III presents the research methodology. Part IV first analyses key Court opinions over the last century, including modern originalist analyses, to show how the use of "interstate commerce" has led or allowed the Court to take what is arguably a narrower view of the power than is warranted by the actual language of the Constitution, in turn necessitating greater than necessary resort to commerce power-extending doctrines such as the affecting commerce test and the necessary and proper clause. Then it considers past and modern academic analyses of the power over commerce based on the "interstate commerce" gloss, including several contemporary analyses that present themselves as originalist. Part VI discusses the dangers of reliance on commerce power-extending doctrines resulting from dependence on the "interstate commerce" power. Part VII is a brief conclusion.


    The potential significance of this study stems first from the fact that giving the national government a power to regulate commerce was among the most important reasons for creating the Constitution in the first place, and has remained among its most important powers. Second, beginning with the so-called Interstate Commerce Act of 1887, (2) and especially since the New Deal, the power to regulate commerce among the several states has become the main source of numerous federal regulations governing wide aspects of American life, from regulating civil rights in the private sector for minorities, women, the disabled, the elderly and other groups in employment, housing, protecting the environment, including air, soil, wetlands, water and endangered species, as well as workplace safety, financial regulation, regulating much of health care, fighting organized crime, regulating harmful as well as helpful drugs, and protecting food, product and consumer safety, among others. Third, conservatives and some originalists have argued that the "interstate commerce" power is not strong enough to support this legislation and is too broadly construed. Thus, because of the importance of the power to regulate commerce among the states for American domestic policy, the interpretation of the meaning of each of the words of the power--and especially of a gloss like "interstate commerce" is very important to constitutional law and to society generally.

    Over the years, the Court has developed three main approaches to the power over commerce among the states, one dealing with instrumentalities and channels of commerce, another dealing with persons and things in commerce, and a third dealing with activities affecting commerce. (3) Within those categories this article focuses only on the question of whether and to what extent the use of the actual language of the Constitution--"among the several states" versus the neologisms "interstate" and "intrastate"--affects the perception or definition of the actual extent of the power within the last category, things affecting commerce.

    On the one hand, this article argues that generally the "interstate commerce power" is itself seen narrowly as limited to regulation of commerce--however defined (4)--that is in the process of crossing state boundaries only, and thus the power often needs considerable assistance from various commerceextending doctrines if it is going to reach activity inside states. This extension of the Constitutional gloss has long been criticized, especially by modern conservative originalists. On the other hand, I argue that the power actually in the Constitution, to regulate commerce among the several states, by definition can regulate certain activity inside states, particularly activity that is not directly in the process of crossing state lines, as long as it affects more states than one, thus reaching a potentially wider range of activities without need or as much need of the assistance of extending doctrines and reaching even further with the aid of such doctrines. While the latter is a highly disputed issue which for space reasons we cannot deal with fully, this article argues that the dominance of "interstate commerce" over the actual constitutional language has supported a narrower than justified meaning of the power over commerce among the several states, including supporting the narrow meaning argued by some conservative and originalist Justices and academicians.



    As the data in Part III demonstrate, the actual constitutional language "commerce . . . among the several states" has long been largely supplanted on the Court by the phrase "interstate commerce," and the latter has long been normally used generally in law and society to refer to the power over commerce among the several states on the largely unexamined assumption that the two are the same. In this section we explore the origins and meanings of the original language of the Constitution and of the term "interstate commerce," as well as its reinforcing complement "intrastate." Because of space considerations, we cannot fully examine the debate over the origins or meaning of "among the several states," but merely sketch out two basic contrasting contentions as to the meaning, and then examine these contentions in light of our data.


    Gaining a power to regulate foreign commerce was one of the chief motives for the calling of the Constitutional Convention, as its absence from the Articles of Confederation proved to be a major weakness for the new nation. This power was granted in Convention with little or no controversy over the power itself, but extensive controversy prevailed over whether it would be exercised by a two-thirds or a simple majority. The chief opposition to a simple majority was from Southern delegates who feared that it would allow a Northern majority to burden their slave-labor-based exports as well as perhaps squeeze out slavery itself. The issue was resolved when concessions were made to the South over slavery, though some continued to advocate for the supermajority requirement both in Convention and then later in some Southern ratifying conventions. The power over commerce among the several states was recognized as necessary in itself as well as to complement the power over foreign commerce and thus was added, again with little controversy over the power itself, but with considerable controversy over the size of the majority to exercise it. A power over Indian commerce was already in the Articles of Confederation and was brought forward into the Constitution with no debate, but with simplified language. (5)

    As noted above, the power over commerce among the several states is among the most important as well as contested powers in the Constitution. Briefly, the key debates are over whether the power to regulate includes the power to prohibit, whether commerce is only buying and selling or something broader, perhaps as broad as all productive or gainful activity, whether the three parts of the power have the same extent, and regarding the part we are concerned with here, "among the several states," the debate, in sum, concerns whether this phrase purports to extend federal power to some activities inside states or is more narrowly limited only to activities which cross state boundaries.

    This latter debate originated in differing political views of the appropriate scope of the power over commerce among the states, but also in occasional usage of the term "between the states" in the Framing era, a term which actually conveys the narrower meaning of only covering activities crossing state boundaries. In the early Republic, the narrow "between" meaning of "among" was often advocated by those in favor of states' rights and a weaker federal power, often in the defense of state control over slavery as an internal matter, since the national power over commerce was recognized as perhaps the chief danger to the peculiar institution. (6) However, the meaning of "among the several states" was not considered in detail by the Supreme Court until the foundational 1824 case, Gibbons v. Ogden, which ironically had nothing to do with slavery.


    Gibbons v. Ogden concerned a long-disputed New York state monopoly of the business of ferrying passengers by steamboat across the Hudson River between Manhattan and northern New Jersey granted to Ogden. (7) Gibbons, on the other hand, had a federal coasting license under the federal Coasting Act of 1793, and claimed that this gave him the right to also operate a ferry between Manhattan and New Jersey regardless of the New York monopoly. Among other arguments, Ogden's counsel asserted that the power over commerce among the several states extended to commerce only when it crossed a state line, while activity inside a state was left to the state to...

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