Subjects of Commerce

• Author: Donald P. Kommers
• Pages: 2565-2566

Page 2565

A chief purpose of the COMMERCE CLAUSE of the federal Constitution is to assure the free movement of the subjects of commerce among the several states. What are these subjects? Essentially, the term refers to things sold or transported in INTERSTATE COMMERCE. But they need not be articles of trade or even of value. Nor are they confined to objects as such. They may include PERSONS. All are included as subjects or articles of commerce when they begin to move from one state to another. They remain articles of commerce until they fall into the possession of the ultimate buyer or reach their final stage of repose within a given state. Thus, at any point between the beginning and the end of their journey among the states, they are legitimate candidates for congressional regulation. With respect to these subjects, as with interstate commerce generally, Congress may, in the words of GIBBONS V. OGDEN (1824), "prescribe the rule by which commerce is to be governed."

Congress ordinarily exerts its power over the subjects of commerce in order to protect their free movement across state borders. But this power has also been construed to permit Congress to divest some subjects of their interstate character. Divestment occurs when Congress prohibits the interstate transportation of certain goods or persons. Examples of such subjects are stolen automobiles,

Page 2566

intoxicating beverages, forged checks, convict-made goods, explosives, prostitutes, firearms, lottery tickets, and kidnaped children. Federal laws prohibiting commerce in such subjects are usually designed to assist the states in fighting crime or protecting their citizens against social, moral, or economic harm. (See NATIONAL POLICE POWER.) But Congress has also banned the interstate shipment of ordinary objects of trade, like lumber, in opposition to state policy. Any such federal law must of course bear a reasonable relationship to interstate commerce. Thus, according to UNITED STATES V. DARBY (1941), Congress may validly bar the interstate shipment of goods produced in violation of a federal MAXIMUM HOUR AND MINIMUM WAGE law so that "interstate commerce [does not become] the instrument of competition in the distribution of goods produced under substandard labor conditions."

The commerce clause, however, is not merely an authorization to Congress to enact laws for the protection of the subjects of commerce. It serves also by its own force to prevent the...