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
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
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