Talk:Commerce Clause

Confusing the Marine Power with Regulating Commerce

This article confuses Marine Power under Law of Nations with regulating commerce. Navigation Acts were enacted under the nations Marine Power and not via Power to Regulate Commerce. The Marine Power of Nations is where the power over enrollment and licensing comes from which Marshall in Gibbons ruled was the valid power Congress was exercising under the Coasting Act.

The above is absolutely untrue:

"The words are, "Congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes."

The subject to be regulated is commerce, and our Constitution being, as was aptly said at the bar, one of enumeration, and not of definition, to ascertain the extent of the power, it becomes necessary to settle the meaning of the word. The counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a general term, applicable to many objects, to one of its significations. Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial [p190] intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse. The mind can scarcely conceive a system for regulating commerce between nations which shall exclude all laws concerning navigation, which shall be silent on the admission of the vessels of the one nation into the ports of the other, and be confined to prescribing rules for the conduct of individuals in the actual employment of buying and selling or of barter.

If commerce does not include navigation, the government of the Union has no direct power over that subject, and can make no law prescribing what shall constitute American vessels or requiring that they shall be navigated by American seamen. Yet this power has been exercised from the commencement of the government, has been exercised with the consent of all, and has been understood by all to be a commercial regulation. All America understands, and has uniformly understood, the word "commerce" to comprehend navigation. It was so understood, and must have been so understood, when the Constitution was framed. The power over commerce, including navigation, was one of the primary objects for which the people of America adopted their government, and must have been contemplated in forming it. The convention must have used the word in that sense, because all have understood it in that sense, and the attempt to restrict it comes too late."

Clearly Marshall is saying that Navigation of vessels through American waters is something Congress has the power to regulate under the Commerce Clause.Emt1619 (talk) 17:40, 19 June 2014 (UTC) — Preceding unsigned comment added by Emt1619 (talk • contribs) 17:36, 19 June 2014 (UTC)

Numbering of Article 1, Section 8's clauses

The Commerce Clause is Article 1, Section 8, Clause 1. Article 1, Section 8, Clause 3 is the Elastic Clause. Anyone taking the time to check that against the Constitution would notice that. --Lemcconnell wrote without signing

No, the Elastic Clause is Article 1, Section 8, Clause 18. The Commerce Clause is Article 1, Section 8, Clause 3 as the article states. Article 1, Section 8, Clause 1 is the Taxing and Spending Clause. Please sign your posts in the future. --Rajah 01:09, 30 April 2007 (UTC)

I am afraid that the unsigned ids correct. The Commerce Clause, beginning with To regulate commerce with... , is a part of Clause 1. Clause 2 begins with To exercise executive Legislation in all cases whatsoever... and Clause 3 begins with To make all Laws which shall be necessary and proper...

Clause 1 contains a lot of congressional powers within it, but each one is not individually organized as "clause". The constitution specifically states only 3 clauses in Sec 8, Art I.

Wiki for Article One of the United States Constitution puts it like this, as well as my Poly Sci text that I am reading right now (Govt. By The People. Magelby, O'Brien, Light, Peltason, Cronin) and several other websites. I am editing it to clause 1. Seary6579 (talk) 01:17, 26 February 2008 (UTC)

Removal of text

I removed the following paragraph, posted by an anonymous user:

This period, referred to as the Constitutional Revolution of 1937, ushered in a period wherein the Supreme Court largely abdicated its role in limiting the scope of federal power

The exact phrase doesn't appear at all in google and "consitutional revolution" 1937 only appears once (in an extract from the writings of a newly appointed, by W, conservative justice). I hardly think this qualifies as a widely used, NPOV phrase.

It is rather silly to be throwing around slang in something that is written for everyone to read. I can only guess that by "W" you could mean President George W. Bush. Considering that the latter wasn't even alive in 1937, that makes it very obscure.72.146.43.188 (talk) 02:30, 15 September 2008 (UTC)

You should try spelling it correctly next time. When I was in Constitutional Law classes in the 80s and 90s, that term certainly was used. One two-part course was split into pre-37 and post-37 courses. It was a very pivotal point in the history of American Federal Constitutional law. My unnecessary Google search for "constitutional revolution of 1937" returned "about" 645,000 hits. The Revolution of '37 is quite orthodox and should most certainly be mentioned. I have edited the article to once again reference the Revolution, and have provided at least one citation of a book published well before 'W' was elected (a book I happen to have on my shelf as well). Fingusernames 07:42, 9 September 2007 (UTC)

Gonzales v. Raich

I think the legal interpretation of this case which I just reversed was wrong. It did not reverse Lopez at all, that case was explicitely distinguished on the basis that marijuana was commercial activity. Nor did it further expand the scope of the power, it was straightforward application of post new-deal precedent. See here for a more sober analysis of the case. Psychobabble 21:50, 16 Jun 2005 (UTC)

You just reversed Gonzales v. Raich? Your influence over the Supreme Court is strong.

Thank you, thank you, I'll be here all week. Tempshill

If I remember right, Raich grows marijuana for herself, and thus the last phrase in that section can be made stronger: it never enters commerce at all, let alone interstate commerce. —Tamfang 19:57, 13 June 2006 (UTC)

Re: Revisions of 8/1/05

Psychobabble, I've restored my previous change that adds the "Significance" section. You reverted the whole thing on the basis of POV. You have a point, and I've adjusted the language to make it more neutral. But the new material describes why Commerce Clause decisions are still important and controversial, provides more references, and there was at least one factual error in the previous version. If you're still concerned about balance, then let's talk. --Lockley 05:36, 2 August 2005 (UTC)

That was still exceedingly pov. I have removed all of the "significance" section which was duplicated. Discussions of the detail of the interpretation is covered adequately and fairly well elsewhere. What remains is a less pov summary of the significance of the commerce clause. Note that my comments have avoided the "fed gov't power = less individual rights" story which your edit was telling.

Further, many, many people find the court's post-new deal commerce clause decisions as perfectly reasonable (Jeffery Rosen is a particularly strong defender of the minimalist/defer to congress & the people interpretation behind them). Also, people who assert a strongly "originalist" interpretation of the constitution (as you seem to be doing) forget that the constitution has a built in mechanism for interpreting the constitution - the Supreme Court. Their interpretation is valid, by definition. Constitutions, such as the US one, were drafted in a deliberately vague way so they could be interpreted in accordance with changed circumstances and movements in the popular will (eg. the depression and the New Deal).

A final comment on your sources. That quote from landmarkcases.org was flat out wrong - it's really easy to imagine what isn't covered by the clause, you can even find out on this very page by reading under the "Renquist" heading. As a general rule it's best to keep external "commentary" sources to a minimum in the text because they can be cherry picked one way or another to tell a particular story, like that Slate quote, where you could have picked another to tell a different story. Finally, cherry picking "founding father" quotes is once again a favourite of originalists and libertarians, but it ignores that the most conclusive evidence of their intent as a whole group is the final Constitution. The final constitution didn't demand a narrow interpretation of the commerce clause - it left that job to the Supreme Court.

I'm not criticising you at all. I'm just trying to keep this more on an "analysis" and less on an "opinion" level - especially as this is the sort of page where libertarians and libertarian-sympathisers love to tell a story (not that I'm necessarily suggesting you were). Psychobabble 03:13, 5 August 2005 (UTC)

Psychobabble, I'm trying to illuminate the ongoing controversy over the Commerce Clause, not take sides in it. I disagree that my last revision was POV, much less exceedingly POV.

In fact I disagree with nearly every sentence in your last comment, but life is short (smile).

When and if US Supreme Court decisions contain questionable logic, that discussion is (in proper context) valid material for wikipedia. Your comment about the inherent validity of SC decisions suggests that they are beyond criticism. I don't accept that. For US citizens, we have more than an academic interest in the issue.

Twice now you have deleted accurate, pertinent, sourced material because you think its inclusion is 'cherry-picking' and presents an unbalanced view. If you want to bring balance to the article, better to add material than just snip out what you don't agree with. That would be more constructive. --Lockley 20:55, 5 August 2005 (UTC)

I've put this up for peer-review. I haven't read the cases or done a detailed study of US Constitutional law. However, these commerce clause decisions have been mainstream constitutional interpretation for 70 years with strong judicial and academic support for a reason and I don't think it's the proper purpose of this article to come down on one side of the debate. This isn't the case of some odd judicial reasoning in a particular case, it's well established and mainstream legal scholarship. I think the current revision provides a good overview of the facts of the issue with links to external resources and the cases themselves to help people further research the subject. The article does say that the clause has been the subject of controversy, explains that the interpretation is "wide" and provides specific examples of things which have been found to be the subject of interstate commerce. I do not think there is a case for telling a story here (ie. that the decisions are incomprehensible), but I'll leave a final decision on that to others who hopefully know more about the specifics if the peer review is successful.Psychobabble 00:05, 6 August 2005 (UTC)

Definition of "Commerce"

Apparently, there is an argument that the primary meaning of the word "commerce" in the late eighteenth century -- and the intent of the Commerce Clause -- was not "trade" as today, but more generally "affairs" or "interaction". See e.g. [1]. Here is the most relevant paragraph:

But Amar makes a compelling case on textual and historical grounds that the commerce clause can be read, as many liberals would like, as applying to more than just the economic sphere. He notes that in 1787 the word "commerce" was generally used to refer to all the various forms of interaction in life. (He cites contemporary texts that spoke of the "free and easy commerce of social life" and "our Lord's commerce with his disciples.") More important, he argues, unless "commerce" is read in this expansive fashion, it is not clear how Congress would have the authority to address noneconomic relations with other nations or with Indian tribes, a power that you might reasonably assume the framers wanted Congress to have. Indeed, Amar shows that if you examine the draft language from the constitutional conclave at Philadelphia in 1787, the framers initially granted Congress the power to regulate "affairs" (not just economic affairs) with the Indians. This language became simply "commerce" when the Indian clause was merged into the same provision with "foreign Nations" and "several States" in the final document.

Crust 21:01, 9 November 2005 (UTC)

Could someone comment on this? Otherwise, I can have a stab at making a mention in the article, but I am not an expert and would prefer to leave this to people who are more knowledgeable on this. Crust 14:32, 29 November 2005 (UTC)

Clean Water Act

There should also be a mention somewhere that this clause is the justification for the Clean Water Act

10th amendment.

Under the "significance" heading, the articles states "The Tenth Amendment states that the federal government of the United States has only the powers specifically delegated to it by the Constitution. Other powers are reserved to the states, or to the people." The 10th Amendment does not say "specifically" delegated powers, and this is contentious in constitutional law. The phrase is somewhat biased in the article because I don't believe there has ever been a lasting precedent that voted one way or the other. This goes back to Jefferson/Hamilton and is still debated in the Supreme Court. 131.156.75.125 (talk) 23:40, 18 March 2008 (UTC)

Since the tenth amendment was written and passed after the adoption of the Constitution, does that imply that the Commerce Clause was broader in scope before passage of the Tenth Amendment? If it is the Tenth Amendment that is supplying the limitations on the Commerce Clause power, why then do the early cases that limit the scope of the commerce clause focus so much attention on the language of the commerce clause, instead of the of the language of the Tenth Amendment? If the Tenth Amendment reserves powers to the states, or to the people, why then cannot the people approve their exercise by the federal government?

Jvonkorff (talk) 00:49, 19 August 2008 (UTC)

Source? Cornince (talk) 12:45, 1 May 2009 (UTC)

I moved the Justice Thomas's quotation from his dissent in Gonzalez v Raich down to the section on later decisions at the end. I think that it is out of place in a discussion of the central importance of the commerce clause. Jvonkorff (talk) 12:36, 25 August 2008 (UTC)

navigable waters

I believe that the significance Part I, II, and III structure, to which I have just added, is somewhat cumbersome. But I can't think of a better way of handling this right now. Comments please. I've added material from United States v Rands and I would like to add material from the history of this issue to present time. There is an article on "navigable servitudes" which consists of just a few sentences, that seems related, but I wouldn't give it this name. The topic here is between navigable waters, eminent domain, and water law. Any ideas on how to approach this in terms of organization

Jvonkorff (talk) 00:07, 22 September 2008 (UTC)

Indian commerce clause

This article concerns almost entirely the interstate commerce clause. For example, though Indian tribes generally retain rights not explicitly abrogated in treaties or legislation/regulation when Congress hasn't shown an intent to abrogate them, the Indian commerce clause is much more broad than the interstate commerce clause since the SCOTUS has interpreted the Indian commerce clause to mean that Congress has plenary authority to legislate in Indian affairs. On the other hand, it has limited the interstate commerce clause in US v. Lopez.

Basically, we need to add information about the Indian commerce clause to this article, or create separate articles for the Indian commerce clause, the foreign commerce clause, and the interstate commerce clause. 216.27.182.48 (talk) 05:25, 17 November 2008 (UTC)

I don't know enough about law to write the Indian commerce clause article, but this ruling, especially paragraph 34, explains the differences very well. 64.81.59.139 (talk) 05:26, 17 November 2008 (UTC)

Needs indefinite semi-protection ASAP

This article was vandalized on 26 September 2008, resulting in a laughably bizarre error in the first major quote, and NO ONE CAUGHT IT until I saw the error this morning. This article needs indefinite semi-protection immediately. --Coolcaesar (talk) 17:05, 2 March 2009 (UTC)

Balls - "The Commerce Clause Power is often amplified by the Necessary and Proper Clause which states that this Commerce Clause power, and all of the other balls enumerated powers," - not editing cos I don't feel like sticking around to defend it. —Preceding unsigned comment added by 204.198.73.177 (talk) 15:38, 2 October 2009 (UTC)

Dormant commerce section

The article on the Dormant Commerce Clause states that the clause is used to strike down state laws that inflict on federal governments interstate commerce clause, however our section implies that it is used to strike down federal clauses - at least to my reading.

From the aforementioned article: "The idea behind the Dormant Commerce Clause is that this grant of power implies a negative converse — a restriction prohibiting a state from passing legislation that improperly burdens or discriminates against interstate commerce. The restriction is self-executing and applies even in the absence of a conflicting federal statute."

--155.247.134.211 (talk) 19:23, 9 November 2009 (UTC)

Abuse of the commerce clause

I think a section of this article should be included on abuse/misuse of the Commerce Clause as a general justification of federal laws otherwise not enumerated. Mal7798 (talk) 22:01, 15 February 2010 (UTC)

While there are things that I would agree are clear abuse of the Commerce Clause, the definition of those is a controversial subject, and NPV would be nearly impossible while writing about it. Lolinder (talk) 03:11, 17 October 2010 (UTC)

The clause has allowed the Federal Government to be a monstrous leviathan. Every human activity is subject to this clause based on rulings, and the government can do anything it wants to. Cameron Nedland (talk) 03:22, 27 December 2010 (UTC)

Agreed. However, a consensus could never be reached on what to include under abuse. Lolinder (talk) 04:38, 27 December 2010 (UTC)

Rather than calling it "abuse" it could be a section on controversial power and execution (This is a well-established section in many Wikipedia articles). Then it wouldn't need a consensus to agree on the examples, just proper citation of sources for common or contested criticisms. I found this to be lacking because regardless of what one believes to be the extent of the commerce clause it has been controversial and publicly debated to this day. Particularly in how the commerce clause has become a default go-to justification for powers when there are many other Constitutional and legal precedents.

One example I found missing entirely is federal law enforcement's use of the commerce clause to justify virtually any investigation. Example: When former LAPD officer Chris Dorner murdered two people, the FBI's official request to join the case solely cited the commerce clause as authority for their involvement. Chris Dorner wasn't growing weed or selling bootlegs across state lines, he committed murder and stayed locally. This might be justified under the clause, but nothing in this realm of power is even mentioned in this article. J1DW (talk) 22:35, 21 September 2020 (UTC)

A sloppy article needing total rewriting

This article is in serious need of total rewriting by someone fully familiar with the topic - hopefully a professor of constitutional law. It is disorganized, erratic, does not deal fully with major elements (such as the extent of the states' power to affect interstate commerce), and discusses wholly tangential or irrelevant subjects (such as the nature of Indian tribal government). —Preceding unsigned comment added by 173.16.252.154 (talk) 22:30, 6 April 2010 (UTC)

The section about sex offenders is also incorrect. The Supreme Court will be deciding an ex post facto issue of SORNA, and not whether the law comports with the commerce clause. —Preceding unsigned comment added by 128.239.47.135 (talk) 15:03, 26 May 2010 (UTC)

I have edited the entire "New Deal" section as it was rather convoluted and did not flow well. Lweeks (talk) 19:58, 24 April 2012 (UTC)

General Welfare Clause

I think this article (and this talk page) needs to make some reference to the so-called "General Welfare" clause, which was pivotal in the 1937 shift in interpretation regarding the constitutional limits of Federal powers.

One very useful source can be found at:

   http://constitutionalawareness.org/genwelf.html

It is a scholarly article by John Bugler, about "The General Welfare Clause and how, since 1937, it has been abused to undermine Constitutional government." Tripodics (talk) 18:44, 27 December 2010 (UTC)

If you believe that hilarious nonsense (essentially a dressed-up bizarre blog post) is a scholarly article, well, that's just really, really sad. You have clearly never read a real scholarly article---I read at least two per week, plus dozens of reported court decisions. --Coolcaesar (talk) 07:31, 28 December 2010 (UTC)

Ah yes, you my friend have very large testes indeed! 68.43.17.191 (talk) 03:40, 23 July 2011 (UTC)

More specific dates

Under "The Rehquist Court", last main paragraph, RE: 10th Amendment "in the last two decades" this phrase needs to be more specific about the dates. The last two decades from today will be different than the last two decades prior to 50 years from now, so who will know which last two decades this means? --THE FOUNDERS INTENT ^PRAISE 17:02, 1 June 2012 (UTC)

I changed the wording. See if that is satisfactory.    Thorncrag  18:17, 1 June 2012 (UTC)

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The Original Intent of the Commerce Clause

Summary

The original intent of the Commerce Clause (Article I, Section 8, Clause 3 of the Constitution) was to remove/reduce burdens and obstructions to the free-flow of trade in commerce among the States.[1] The original intent is still alive and well today - clearly understood by the Supreme Court in its Dormant Commerce Clause jurisprudence[2], but the Court selectively ignores the original intent across the rest of the Commerce Clause corpus juris. Congress regularly transgresses the limitations put on its police powers to exercise an unconstitutional power (i.e enacting criminal statutes beyond those of the four powers) in violation of 1. the original intent of the Commerce Clause; 2. principles of federalism and dual sovereignty; and 3. the Tenth Amendment. The very foundation of our Rule of Law has been subverted and "sunk" into a Serbonian Bog of illegal legislation[3].

Footnotes. 1. Florida v. United States HHS, 780 F. Supp. 2d 1256, 1276-77 (ND FL 2011).

2. Tenn. Wine & Spirits Retailers v. Thomas, 139 S. Ct. 2449, 2460 (2019)

3. Milton, John. 1969. Paradise Lost. Four Harvard Classics: The Complete Poems of John Milton. Harvard University Press. — Preceding unsigned comment added by 174.247.81.94 (talk) 05:23, 1 November 2022 (UTC)