Interstate Commerce

Author:David Gordon

Page 1396

The term "interstate commerce" does not appear in the Constitution. Nor do the few debates in the CONSTITUTIONAL CONVENTION OF 1787 over the wording of the COMMERCE CLAUSE offer much help in discerning what the Framers meant by granting Congress the power to regulate commerce "among the several states." The absence of expressed specific intent led WILLIAM W. CROSSKEY to examine contemporary usage and to theorize that the national power over commerce was intended to be virtually exclusive and to include not only interstate commerce but INTRASTATE COMMERCE as well. One of the Framers' intentions was to eliminate the destructive conflicts between contradictory state practices under the Confederation government. Chief Justice JOHN MARSHALL so assumed when he defined the term in GIBBONS V. OGDEN (1824), a case that has guided interpretation to this day. Interstate commerce, he wrote, is that "which concerns more states than one" and it even extends "to those internal concerns which affect the states generally." In the nineteenth century the clause was more often applied as a restriction on state powers than as a positive grant of national power, and as EDWARD S. CORWIN remarked, "the word "commerce,' as designating the thing to be protected against State interference, long came to dominate the clause, while the potential word "regulate' remained in the background." In Houston, East & West Texas Railway v. United States, (1914), the Court expanded the reach of congressional power by permitting federal regulation of purely intrastate commerce because, in the railroad case before it, the two were inextricably linked.

The scope of the commerce clause has encouraged the Court to devise a number of tests throughout its history to determine limits to the term, the best known of which is the STREAM OF COMMERCE DOCTRINE. (See also SELECTIVE EXCLUSIVENESS, EFFECTS ON COMMERCE, and SHREVEPORT DOCTRINE). The Supreme Court has thus held that "interstate commerce" means both movement that crosses state lines and movement that does not but that adversely affects interstate commerce. It includes tangible items as well as intangible ones. In Gibbons, Marshall defined it as "commercial intercourse," but even this expansive reading has been widened...

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