Obamacare, the Constitution, and the Original Meaning of the Commerce Clause

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Several lawsuits over the health-care reform's individual mandate hinge on interpretations of the constitution's Commerce Clause. This clause is widely believed to grant Congress broad power over national markets. But that isn't what the founders had in mind.

Does Congress's power to regulate commerce permit it to mandate that all Americans purchase a health insurance policy? So far two federal district courts have answered "yes" and one has answered "no." The courts' opinions exhaustively discuss and interpret modern Supreme Court case law, but barely touch upon the history of the commerce power and the intent of the Constitution's framers. Judges apparently fear that discussion of relevant history would not only cast doubt on the constitutionality of Obamacare, but also myriad federal laws based on the regulation of commerce.

The purpose of the Commerce Clause

The Commerce Clause, in pertinent part, provides that Congress has the authority "[t]o regulate commerce with foreign nations, and among the several States, and with the Indian Tribes." No such power existed under the Articles of Confederation, which was the first constitution of the United States. This lack of power injured Americans in two principle ways.

First, the Confederation government could not retaliate when other nations restricted access to their markets. As early as 1782, Alexander Hamilton complained that the Confederation Congress had no power to "preserve the balance of trade in favor" of the thirteen states. A commerce power would permit Congress to shut our ports to the ships of nations that did not welcome American ships and goods.

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Second, internal trade barriers inhibited the free movement of goods across the United States. When defending the Commerce Clause in the Federalist Papers, James Madison observed that a "very material object of this power was the relief of States which import and export through other States, from the improper contributions levied on them by the latter." Internal customs duties, Madison argued, hampered trade of the whole and led to tensions between neighboring states.

The original definition of 'commerce'

Madison's and Hamilton's view of commerce as what we call "trade" is borne out by the contemporary dictionary definitions of commerce. For instance, Samuel Johnson's Dictionary of the English Language (3d ed., 1765), defined commerce as "intercourse, exchange of one thing for another, interchange of anything; trade; traffick."

Usage of the word "commerce" in other parts of the Constitution further buttresses this understanding. Section 9 of Article I provides that "[n]o Preference shall be given to any Regulation of Commerce or Revenue to the Ports of one State over those of another." This provision obviously prohibits Congress from favoring, say, the port of Boston over the port of Charleston. The mention of commerce in connection with ports indicates that the framers had in mind the traffic of goods - the importing or exporting of various items.

Even the Supreme Court's first foray into the realm of the Commerce Clause supports a narrow interpretation. In Gibbons v. Ogden (1824), Chief Justice John Marshall struck down a state- granted monopoly for steamboat service. In discussing commerce, Marshall noted that state laws concerning the quality of manufactured items or foodstuffs "act upon a subject before it becomes an article of foreign commerce, or of commerce among the States. …