Academic journal article Constitutional Commentary

How "Commerce among the Several States" Became "Interstate Commerce," and Why It Matters

Academic journal article Constitutional Commentary

How "Commerce among the Several States" Became "Interstate Commerce," and Why It Matters

Article excerpt



This Introduction briefly discusses the significance of the Constitutional "[p]ower . . . [t]o regulate [cjommerce . . . among the several states" and argues that this, the actual language of the Constitution, was understood to have and has a broader meaning than the nearly universally accepted but quite unoriginal substitute language, "interstate commerce." Part I considers the first major interpretation of the actual words of the Constitution, in Gibbons v. Ogden, (1) and then discusses the origins and meanings of the later invented and adopted terms "interstate" and "intrastate." Part II presents data on the frequency of usage of all these terms in all Court majority opinions since 1789, and shows how "interstate commerce" has overwhelmingly been the term used by the Supreme Court since shortly after its introduction in 1869, being used about ten times more in majority opinions concerning the power to regulate commerce among the several states since roughly 1910 than the actual constitutional language. Part III presents the research methodology. Part IV first analyses key Court opinions over the last century, including modern originalist analyses, to show how the use of "interstate commerce" has led or allowed the Court to take what is arguably a narrower view of the power than is warranted by the actual language of the Constitution, in turn necessitating greater than necessary resort to commerce power-extending doctrines such as the affecting commerce test and the necessary and proper clause. Then it considers past and modern academic analyses of the power over commerce based on the "interstate commerce" gloss, including several contemporary analyses that present themselves as originalist. Part VI discusses the dangers of reliance on commerce power-extending doctrines resulting from dependence on the "interstate commerce" power. Part VII is a brief conclusion.


The potential significance of this study stems first from the fact that giving the national government a power to regulate commerce was among the most important reasons for creating the Constitution in the first place, and has remained among its most important powers. Second, beginning with the so-called Interstate Commerce Act of 1887, (2) and especially since the New Deal, the power to regulate commerce among the several states has become the main source of numerous federal regulations governing wide aspects of American life, from regulating civil rights in the private sector for minorities, women, the disabled, the elderly and other groups in employment, housing, protecting the environment, including air, soil, wetlands, water and endangered species, as well as workplace safety, financial regulation, regulating much of health care, fighting organized crime, regulating harmful as well as helpful drugs, and protecting food, product and consumer safety, among others. Third, conservatives and some originalists have argued that the "interstate commerce" power is not strong enough to support this legislation and is too broadly construed. Thus, because of the importance of the power to regulate commerce among the states for American domestic policy, the interpretation of the meaning of each of the words of the power--and especially of a gloss like "interstate commerce" is very important to constitutional law and to society generally.

Over the years, the Court has developed three main approaches to the power over commerce among the states, one dealing with instrumentalities and channels of commerce, another dealing with persons and things in commerce, and a third dealing with activities affecting commerce. (3) Within those categories this article focuses only on the question of whether and to what extent the use of the actual language of the Constitution--"among the several states" versus the neologisms "interstate" and "intrastate"--affects the perception or definition of the actual extent of the power within the last category, things affecting commerce. …

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