Commerce Power and State Power
REMOVAL OF THE OBSTRUCTIONS on commercial relations imposed by the "sovereign" states was a moving cause of the Philadelphia Convention. For protection against these burdens and restrictions, Madison, as a member of the Continental Congress, had advocated general authority over commerce, and later on he was conspicuous among those who set in motion the sequence of events leading to the successful meeting at Philadelphia. There seems to be no doubt that the commerce clause was inserted in the Constitution primarily to prevent the states from interfering with the freedom of commercial intercourse. Yet all the plans offered by the Convention apparently envisioned a positive power in the national government to regulate commerce, and subsequent developments have converted this clause into a most important source of national authority. Was this the intention of the men who framed the Constitution? The record of the Convention of 1787 affords no conclusive answer to this question.
On September 15, 1787, Madison, commenting on the question whether a tonnage tax could be levied by the states under Article I, Section 10, for purposes of clearing and dredging harbors, said: "It depends on the extent of the commerce power. These terms -- to regulate commerce -- are vague but seem to exclude this power of the states. He [ Madison] was more and more convinced that the regulation of commerce was in its nature indivisible and ought to be wholly under one authority." Immediately following this statement, Sherman of Connecticut observed: "The Power of the United States to regulate trade, being Supreme, can controul [sic] interferences of the State regulations where such interferences happen; so that there is no danger to be apprehended from a concurrent jurisdiction."
"Had the issue been clearly posed and unequivocally settled," Albert S. Abel has commented, "it must perhaps have eliminated decades of judicial groping and guessing; on the other hand it might have broken up the convention."
Certain inferences about the nature and scope of the commerce power may be drawn from changes made by the Convention in the wording of