The Commerce Clause

Part Two in the series analyzing certain aspects of Akhil Reed Amar book America’s Constitution: A Biography.

Amar takes to task the recent Supreme Court decisions of United States v. Lopez and United States v. Morrison for endorsing a more limited reading of the Commerce Clause that authorizes congressional regulation only on interstate economic interactions. Since the New Deal Court, the federal judiciary has interpreted the Commerce Clause as granting Congress a wide berth of powers in regulating activity and behavior if that activity or behavior has even a tangential effect on interstate commerce. The classic example is that of the local restaurant that serves anyone who travels across state lines (and who does not travel across state lines anymore?). With the two cases mentioned above, however, the Supreme Court has said that the Commerce Clause does impose real limits on the power of Congress to regulate local activity. Not every activity or behavior can be tied to interstate commerce, specifically the regulation of handguns in local school zones in Lopez and the regulation of violence against women in Morrison.

Amar, however, advocates a much broader reading of the Commerce Clause than even the Supreme Court allowed before Lopez and Morrison. Arguing that "commerce" in the Founding Era was a reference to any activity of life (not just economic activity), Amar effectively argues that the Commerce Clause was the final constitutional wording that embodied the Founder's principle that Congress should have power to legislate in all cases in which "the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of Legislation from individual States" (wording as embodied in the Virginia Plan presented to the Philadelphia Constitutional Convention). Although the Plan's power to veto any state law (a power which British colonial governors and the Privy Council had possessed and a congressional power for which Madison himself passionately advocated) was rejected (Amar, 109), Amar points out that the Founder's were very interested in giving Congress wide berth to act on problems that the political consensus had deemed were continental (national) in nature.

As evidence of the usage of the word "commerce" in the late eighteenth-century, Amar offers the following:

• "Bolingbroke's famous mid-eighteenth century tract, The Idea of a Patriot King, spoke of the 'free and easy commerce of social life...' "(Amar, 107)


• "...and other contemporary texts referred to 'domestic animals which have the greatest Commerce with mankind.' "(Amar, 107)


• Congressional power to regulate all interactions with the Indian tribes was folded in to the Commerce Clause. Draft language at the Convention had earlier referenced Congress' power to "regulate affairs with the Indians", so it is clear that the Founders meant for Congress to have plenary authority over this area of law. (Amar, 107)

Amar suggests a renaming of this clause of Article I, Section 8 to "the international-and-interstate clause" or the "with-and-among clause." (Amar, 108) Amar wraps up his argument:

Without a broad reading of "Commerce" in this clause, it is not entirely clear whence the federal government would derive its power to deal with noneconomic international incidents -- or for that matter to address the entire range of vexing nonmercantile interactions and altercations that might arise among the states.(Amar, 107-108)

Personally, I appreciate Amar's more honest, straight-forward reading of the Commerce Clause when compared to the federal judiciary's convoluted, confused stretching of the Clause to reduce every aspect of life to interstate economic commerce. It seems to me there has been a genuine need since the 1930's for such a broad provision in the Constitution. The problem, however, is that nineteenth and early-twentieth century jurisprudence does not support Amar's broadest-possible reading of the Commerce Clause, largely restricting congressional power under the Clause to activity that genuinely and facially affected interstate economic activity, for example trade. To change the generally-accepted reading of the Constitution's grant of enumerated congressional powers, it would have been far-preferable to exercise the Article V provisions to actually amend the Constitution to specifically grant Congress the powers that the nation felt (and still feels today) that Congress genuinely should be able to exercise.

I have long toyed with what an such amendment to the Constitution would look like. An alternative approach would be to pass more specific grants of power along the way, as the need arose. The argument against this is that the Article V process is too cumbersome, slow and unwieldy to effectively employ during times of national crisis, but where a true consensus for federal action exists, I submit that passage and ratification of constitutional amendments would not take all that long. And the benefit going forward is clarity and well-defined boundaries around congressional power, thereby preserving the Founding concepts of freedom, fundamental rights, and limited government.

If the United States had acted diligently to amend the Constitution along the way, the following is just one possible listing of the kinds of provisions that might today be found within the enumerated powers of Congress:

To facilitate transportation and communications between the several States;

To establish and administer medical care, retirement-pension, social insurance, and welfare systems concurrently with the several States;

To provide for financial aid and coordinated disaster relief in areas of the Union for which the President may declare an emergency;

To set minimum standards of cleanliness for the air and waterways of the United States, from which military bases and other federal installations shall not be granted exemptions, and to establish standards for emissions of chemicals and pollutants;

To establish and provide for a system of national parks;

To provide for the regulation of the production, distribution, and use of nuclear, oil, natural gas, solar, wind, hydro-electric, and other energy sources;

To provide for the licensing of frequencies of the electromagnetic wave spectrum;

To provide for the exploration of space;