The Commerce Clause is an enumerated power listed in the United States Constitution (Article I, Section 8, Clause 3). The clause states that the Congress shall have power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”. Popular beliefs hold that there are four interpretations of the Commerce Clause.

  1. The Clause gives Congress the exclusive power to regulate commerce. Under this interpretation, states are divested of all power to regulate interstate commerce.
  2. The Clause gives Congress and the states concurrent power to regulate commerce. Under this view, state regulation of commerce is invalid only when it is preempted by federal law.
  3. The Clause assumes that Congress and the states each have their own mutually exclusive zones of regulatory power. Under this interpretation, it becomes the job of the courts to determine whether one sovereign has invaded the exclusive regulatory zone of the other.
  4. The Clause by its own force divests states of the power to regulate commerce in certain ways, but the states and Congress retain concurrent power to regulate commerce in many other ways. This interpretation, a blend of two others, is the approach taken by the Court in its decisions interpreting the Commerce Clause.

The purpose of this treatise is to represent a new interpretation, actually the original interpretation. In order to get the correct context of the clause we must first look at the term enumerated powers.

Enumerated means limited and in context to our Constitution, limited to Article 1 Section 8. This position was codified in 1819 when, Chief Justice Marshall (McCulloch v. Maryland) ruled: “This government is acknowledged by all, to be one of enumerated powers.” This are not broad powers, they are but limited powers.

Now that we know Article 1 section 8 contained the limited powers of the Congress. Let briefly look at those limited powers. The Congress shall have Power:

To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States;

but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States; To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;

And To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Keep in mind these are limited powers. Note each clause is singular in purpose.

Now with that background, let’s look at Commerce Clause. This section has one purpose – grants Congress power to regulate commerce. But at comes with a limitation to that power.

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; Congress can regulate commerce with foreign nations. Congress can regulate commerce among the several States. Congress can regulate trade with the Indian tribes.

The there are two key words in this clause, “with” and “among”. The word “with” is inclusive and the word “among” is exclusive. There is no dispute in relation to the Congress power to regulate foreign trade and regulate trade with the Indian tribes, as at the time of its writing the Indian tribes were considered individual nations. The inclusive nature of the word “with” infers all. The congress has the power to regulate all trade with foreign nations and the Indian tribes. The exclusive nature of the word “among” infers limitation. The limitation contained therein is commerce “State to State”. Follows are several examples of commerce that should be regulated under this clause: State A purchasing resources from State B. State A purchasing minerals from State B. State A purchasing services from State B. This interpretation is inline with the enumerated powers of the Judiciary related to “settling controversy between two of more States” Also note that within the enumerated powers of the judiciary the reference to: between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.” Remember we are looking at enumerated (limited) powers. The Judiciary was granted power to settle disputes between citizens and the state, federal government or foreign nation. This fact enforces the interpretation that the commerce clause relates only to trade between states and not to trade between citizens of the states. Interpretation truly limits the scope the federal government.

Copyright, 2010, Joe Bellis