What Commerce Among the Several States Meant to the Men Who Wrote It

An Ohio farmer grows wheat on his own land and feeds much of it to his own chickens and his own household. According to the Supreme Court of the United States, wheat he never put on the market still counted as interstate commerce. If that sentence makes you blink, good. It should. It is the moment in our constitutional history when a word lost its meaning, and the word was "commerce."

Here is the argument of this post in one line: when the Founders gave Congress power to regulate commerce among the several states, they meant the power to govern trade that crosses state lines, and they did not mean a power over every economic act that might, added up with millions of others, have some effect on a national market. I will define the terms, lay out the argument in numbered steps, walk through the cases from 1824 to 2005, state the best objection fairly, and answer it.

Define the terms first

The clause is Article I, Section 8, Clause 3. Congress shall have power:

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

Three words need pinning down.

Commerce. In the founding era, the word meant trade: buying, selling, bartering and the transportation of goods for those purposes, along with the navigation that carried them. It did not mean manufacturing, farming or mining, which were the activities that produced the things traded. Founding-era writers routinely listed agriculture, manufactures and commerce as three separate branches of economic life. Hamilton's 1791 Report on Manufactures treats them as distinct branches throughout. You cannot list three things as distinct and then claim one of them includes the other two.

Among the several States. "Among" means between or intermingled with. The phrase covers commerce that concerns more than one state, as opposed to commerce wholly within one state.

Regulate. To make regular, to prescribe the rule by which something is governed. A power to regulate trade presupposes the trade exists. It is not a power to compel people to trade, or to forbid them from not trading.

Those definitions are not a conservative invention. They are what the words meant to the people who ratified them, which is the only meaning a written constitution can have if writing it down was supposed to accomplish anything.

Why the Founders wanted the power at all

Under the Articles of Confederation, Congress had no power to regulate trade among the states. The results were ugly. States with good ports taxed goods passing through to their neighbors. Madison later described New Jersey, placed between Philadelphia and New York, as a cask tapped at both ends, and North Carolina, between Virginia and South Carolina, as a patient bleeding at both arms. States retaliated against one another with duties and fees. Foreign nations, Britain above all, played the states against one another because no single American government could answer with a common trade policy.

The trade wars led directly to the Constitution. Virginia and Maryland met at Mount Vernon in 1785 to settle navigation on the Potomac and Chesapeake. That success led to a call for a broader meeting at Annapolis in September 1786, which only five states attended. The Annapolis delegates, with Hamilton drafting their report, called for a convention in Philadelphia in May 1787 to fix the defects of the federal system. The full comparison of the two charters is in The Articles of Confederation Next to the Constitution, Side by Side.

So the purpose of the commerce power was specific. Madison explained it in Federalist 42: without it, states that import and export through other states would be subject to improper contributions levied by their neighbors. The power was a free-trade clause for the Union. It was meant to tear down barriers between the states, not to give Washington control of what happened inside them.

The argument in five steps

1. The meaning of a constitutional provision is the meaning its words had to the public that ratified it.
2. In 1787, "commerce" meant trade and the transportation incident to it, distinct from production.
3. "Among the several States" limited the power to commerce that crosses state lines or concerns more than one state.
4. Therefore, the clause gave Congress power to govern interstate trade, and the Necessary and Proper Clause gave it the means to make that power effective, such as protecting the channels and instruments of that trade.
5. Therefore, a reading of the clause that reaches noncommercial, intrastate activity because of its aggregate effect on a market is not an interpretation of the clause. It is a replacement of it.

Premise one is the contested one, and I will defend it below. Premises two and three are matters of historical evidence. Scholars who have gone through founding-era newspapers, debates and dictionaries have argued that the trade meaning was dominant, though other scholars dispute how narrow it was. Four and five follow.

How the Court read it, from 1824 to 1937

The first great commerce case was Gibbons v. Ogden, decided in 1824. New York had granted a monopoly on steamboat navigation in its waters. Thomas Gibbons ran steamboats between New Jersey and New York under a federal coasting license. Chief Justice Marshall held for Gibbons and struck down the monopoly as applied to him.

Marshall read the word broadly enough to include navigation: commerce, he said, is more than traffic; it is intercourse, including the carrying of goods and people. But he also drew a line. The power did not reach commerce that is completely internal to a state, carried on between man and man in a state, and which does not extend to or affect other states. And he wrote that the enumeration of particular powers presupposes something not enumerated. Gibbons was a nationalist decision, and it still assumed limits.

For more than a century the Court applied that distinction, imperfectly. In United States v. E. C. Knight Co. (1895), it held that manufacturing is not commerce. In Hammer v. Dagenhart (1918), it struck down a federal ban on shipping goods made with child labor, reasoning that Congress was using the commerce power to regulate production, a matter for the states. In A.L.A. Schechter Poultry Corp. v. United States (1935), a unanimous Court struck down the New Deal's poultry codes as applied to a Brooklyn slaughterhouse; the story is in A Brooklyn Poultry Firm Beat the New Deal Nine to Nothing in 1935.

Then came 1937. After President Franklin Roosevelt's court-packing plan was announced in February, the Court decided NLRB v. Jones and Laughlin Steel Corp. on April 12, 1937, upholding the National Labor Relations Act as applied to a steel manufacturer. Within a few years the old line was gone. United States v. Darby (1941) overruled Hammer v. Dagenhart. And in Wickard v. Filburn (1942), the Court unanimously upheld a penalty on the Ohio farmer who grew wheat beyond his federal allotment, much of it for use on his own farm. Justice Robert Jackson reasoned that even if his own contribution was trivial, taken together with that of many others similarly situated it was far from trivial, because homegrown wheat meant less wheat bought on the market.

That is the aggregation principle. Follow it one step further than its authors did. Every act of every person, aggregated across a nation, affects some market. Cooking dinner at home affects the restaurant market. Mowing your own lawn affects the landscaping market. Raising your own children affects the child care market. If aggregation is the test, nothing is outside it. The Founders' list of powers becomes a list of examples.

The partial restoration, 1995 to 2005

For nearly sixty years after 1937, the Court did not strike down a single federal law as exceeding the commerce power. Then came United States v. Lopez, decided April 26, 1995. A high school senior in San Antonio brought a handgun to school in 1992 and was charged under the federal Gun-Free School Zones Act of 1990. Chief Justice Rehnquist, writing for a five-justice majority, held that the act exceeded Congress's power. Possessing a gun near a school is not economic activity, and the act had no requirement that the gun had moved in interstate commerce.

Rehnquist sorted the commerce power into three categories: the channels of interstate commerce, the instrumentalities of interstate commerce and persons or things in it, and activities that substantially affect interstate commerce. The government's theory, he noted, would leave no limit at all: if guns near schools affect commerce because violent crime affects education and education affects productivity, then Congress could regulate any activity it found related to economic productivity, including marriage, divorce and child custody. Justice Clarence Thomas, concurring, went further and urged a return to the original meaning. More on the case is in United States v. Lopez Was the First Commerce Clause Limit Since the New Deal and How a Texas student's gun at school produced the Court's Commerce Clause limit.

In United States v. Morrison (2000), the Court, again five to four, struck down the civil remedy in the Violence Against Women Act of 1994. Gender-motivated violence is a terrible crime, and states can and do punish it. But it is not economic activity, and Congress's findings about aggregate effects on the economy could not turn it into commerce.

Then the restoration stalled. In Gonzales v. Raich (2005), the Court held, six to three, that Congress could prohibit the cultivation of marijuana for personal medical use permitted under California law, relying on Wickard. Justice Scalia concurred in the judgment on necessary and proper grounds. Justice O'Connor, joined by Chief Justice Rehnquist and in part by Justice Thomas, dissented, and Thomas wrote separately that if Congress can regulate this under the commerce power, it can regulate virtually anything, and the federal government is no longer one of limited and enumerated powers. That case split conservatives, as Gonzales v. Raich and the Marijuana Case That Split Conservative Justices explains. The point here is narrower: Raich shows that Wickard is still standing, and as long as it stands, Lopez and Morrison are islands.

The strongest objection, stated fairly

Here is the other side at full strength.

The economy of 1787 was local. Goods moved slowly, most people farmed, and a sharp line between trade and production made sense. Today a single product may be designed in one state, built from parts made in ten others, financed from a third, and sold in all fifty. Markets are national and global. A Congress that can regulate only goods physically crossing a state line would be unable to address national problems: nationwide labor standards, food and drug safety, environmental hazards that cross borders, discrimination in businesses that serve interstate travelers. The Civil Rights Act of 1964, as applied to hotels and restaurants, was upheld under the commerce power in Heart of Atlanta Motel v. United States and Katzenbach v. McClung, both decided in December 1964. Do conservatives really want to say the Court got those wrong? The founders wrote a Constitution to endure, and a modern economy demands a broader reading.

That is the best version. Here is the answer.

1. A changed economy changes the facts, not the words. The original meaning of "commerce among the several States" applies to more activity today precisely because more activity really does cross state lines. A truck carrying parts from Ohio to Michigan is interstate commerce under any reading. The original meaning already grows with the economy. What it does not do is erase the line between trade and everything else.
2. The Constitution has a method for adding powers. It is Article V. If the American people want Congress to have a general power over the national economy, they can amend the Constitution to say so. Reading a general power into the commerce clause skips the amendment process and denies the people the vote it promises them.
3. States are not helpless. Every state has a general police power to regulate health, safety, labor and the environment within its borders. The question is never whether a problem can be addressed. It is which government addresses it. Federalism allows fifty answers, and the people can move to the state whose answer they prefer.
4. The civil rights cases do not require Wickard. Hotels serving interstate travelers and restaurants buying food shipped across state lines are engaged in commerce in the original sense. Many scholars have also argued that the Fourteenth Amendment's enforcement power, and the Thirteenth Amendment's, supply additional grounds for civil rights laws. Defending the original meaning of commerce does not require relitigating 1964.
5. No limit is the tell. A theory of a power that cannot name a single thing outside the power is not a theory of a limited power. Rehnquist wrote in Lopez that, under the government's theories, it was difficult to perceive any limitation on federal power, and Thomas made the same point in Raich.

What is at stake for a family

The commerce power is the legal foundation for a vast share of federal regulation. When a federal agency writes a rule about what you may grow, build, keep or do on your own property, the authority traced back to the source is usually this clause, read through Wickard. The red tape tracker shows how many rules that adds up to.

Picture a family in Iowa (this is a hypothetical) that raises a few hogs for its own freezer and sells none. Under the original meaning, that is not interstate commerce, and Congress cannot regulate it under the commerce power; Iowa can, if Iowans want it to. Under the aggregation principle, the family's hogs reduce its demand for pork, aggregated with millions of other households, and Washington may write the rules. The difference is not academic. It decides whether the government closest to you or the government farthest from you sets the terms of your private life.

The case in brief

1. In 1787 "commerce" meant trade and its transportation, distinct from agriculture and manufacturing, and "among the several States" meant across state lines.
2. The power was a remedy for the trade wars between states under the Articles of Confederation, as Madison explained in Federalist 42.
3. Gibbons v. Ogden (1824) read commerce broadly but kept purely internal commerce for the states; the 1937 turn and Wickard v. Filburn (1942) erased the line by aggregation.
4. Lopez (1995) and Morrison (2000) restored a limit for noneconomic activity, but Raich (2005) showed Wickard still governs.
5. A modern economy is a reason to amend the Constitution through Article V if the people choose, not to rewrite one word by litigation.

What you can do: read Article I, Section 8, Clause 3 and Federalist 42 this week, then ask your member of Congress, through My Representatives, which clause authorizes the next federal rule on intrastate activity.