Locating the Boundaries: The Scope of Congress's Power to Regulate Commerce
Bork, Robert H., Troy, Daniel E., Harvard Journal of Law & Public Policy
The Congress shall have Power ... To regulate Commerce ... among the several States.
--U.S. Constitution, Art. I, [section] 8, cl. 3
In the wake of the American Revolution, neither the Continental Congress nor the States acting on their own could respond effectively to the external and internal trade disputes that threatened the new country's prosperity and peace. "It may be doubted," wrote Chief Justice John Marshall, "whether any of the evils proceeding from the feebleness of the federal government, contributed more to that great [constitutional] revolution which introduced the [modern constitutional] system, than the deep and general conviction, that commerce ought to be regulated by Congress." (1) Accordingly, although the federal government was to be limited to exercising only enumerated powers, those powers included the power to regulate commerce, thus remedying this deficiency in the Articles of Confederation.
Regrettably, but perhaps inevitably, "[t]he ink was not yet dry on the Constitution when its revision began." (2) Almost immediately, Congress began pressing beyond specifically enumerated powers granted it in Article I. As a result, today, Americans encounter a national government far more expansive than the Framers and men of their generation could ever have imagined.
Despite this expansion of federal power, however, certain actions and policies of the several States increasingly threaten the free flow of goods and services in interstate commerce; we still face the problem that led to the creation of the federal Constitution. Unsure about the scope of the federal commerce power and, accordingly, the appropriate limits on state interference with interstate commerce, the courts, executives, and legislatures, at the federal and state level alike, are often at a loss about how to approach the problem.
Uncertainty stems, in part, from the recognition that the scope of the commerce power has expanded so far beyond the original understanding of that power's boundaries that any attempt to adhere strictly to its original meaning today would likely be futile and inappropriate. This Article attempts to provide direction to those who, although fully aware of these significant and enduring changes, seek nonetheless to assess the propriety of federal and state legislation with an eye toward respecting the original purpose of the enumeration of congressional power and, therefore, to effect a proper balance between the national and state government.
There is no possibility, today, of adhering completely to the original constitutional design. Such a daring plan would require overturning the New Deal, the Great Society, and almost all of the vast network of federal legislation and regulation put in place in the last two-thirds of the twentieth century. It appears that the American people would be overwhelmingly against such a change and no court would attempt to force it upon them.
Moreover, as Edward Banfield has argued, the attempt to define the outer limits of national power, as Article I, Section 8 of the Constitution does, was likely a flawed enterprise, doomed to failure from the very beginning:
Nothing of importance can be done to stop the spread of federal power, let alone to restore something like the division of powers agreed upon by the framers of the Constitution. The reason lies in human nature: men cannot be relied upon voluntarily to abide by their agreements, including those upon which their political order depends. There is an antagonism, amounting to an incompatibility, between popular government--meaning government in accordance with the will of the people--and the maintenance of limits on the sphere of government. (3)
Orginalists thus face a particularly difficult task in trying to find a way to give current effect to the original philosophy that animated the adoption of the Commerce Clause and other limited federal powers. …