What is commerce?

So, what is interstate commerce? I’ve been thinking about this much more this week after the Raich opinion. (See my previous posts here, here and here on Raich.)

The Constitution gives the federal Congress the right to legislate and regulate interstate Commerce. Article 1, Section 8, Paragraph 4 says as follows:

[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes

The key phrase there is the Power to regulate commerce among the several States – the Interstate Commerce Clause. In and of itself, it seems simple enough…but it becomes more and more difficult to define what is commerce – and what is among the several States. Very generally speaking, there are two camps of interpretation – Narrow and Broad. The narrow interpretation would severely limit what is classified as commerce, and would strictly define what is among the States. Conversely, the broad interpretation would categorize most activity as commerce, and use a very open test to determine what is among the States. This controversy is central to the discussion of Raich – and much (if not most) federal legislation.

Historically, the federal powers under the Commerce Clause of the Constitution have been interpreted quite broadly. C.J. John Marshall himself stated, “[T]he power of Congress does not stop at the jurisdictional lines of the several states. It would be a very useless power if it could not pass those lines." Gibbons v. Ogden, 22 U.S. 1 (1824). Marshall was an early visionary seeing, when many others could not, that a strong federal government was critical for the industrial age advances that the new United States needed for development and expansion. Later, the Supreme Court extended these powers to govern activity which was “local.” In Wickard v. Filburn, 317 U.S. 111 (1942), the Court held that a farmer who was growing wheat on his own land, and only for personal consumption, could be regulated by Congress through the Commerce Clause. Mr. Justice Jackson there stated,

“Whether the subject of the regulation in question was 'production,' 'consumption,' or 'marketing' is, therefore, not material for purposes of deciding the question of federal power before us. That an activity is of local character may help in a doubtful case to determine whether Congress intended to reach it.... But even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect.'”

And,

“The effect of the statute before us is to restrict the amount which may be produced for market and the extent as well to which one may forestall resort to the market by producing to meet his own needs. That appellee's own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial....”

In addition, Jackson specifically noted John Marshall saying, “At the beginning Chief Justice Marshall described the Federal commerce power with a breadth never yet exceeded. He made emphatic the embracing and penetrating nature of this power by warning that effective restraints on its exercise must proceed from political rather than from judicial processes.” He also noted the opinion of Mr. Justice Holmes in Swift & Co. v. United States, 196 U.S. 375 (1905), in saying, “Mr. Justice Holmes, in sustaining the exercise of national power over intrastate activity, stated for the Court that 'commerce among the states is not a technical legal conception, but a practical one, drawn from the course of business.”

It is relatively clear from this historically underpinning, that the Commerce Clause is a broad doctrine, giving the federal government the power to regulate a wide range of activities that have a substantial effect on the nation as a whole.

So where is the controversy? Where is the dispute? Well, as stated, there is a camp that would read the Commerce Clause in a very strict and limited sence…it is not a viewpoint that either John Marshall or Oliver Wendell Holmes would hold to, but it exists nonetheless. Why?

The Constitution in Exile. Originalism. The Dead Constitution.

The Constitution in Exile movement essentially believes (in a sweepingly general sense) that the Constitution should be interpreted as it would have been when enacted – thus the Commerce Clause should be interpreted as it would have been in 1787.


(Understand, there are varying forms of Originalism – I’m simply making broad generalizations.) So…in 1787 would the Founders have considered growing wheat on your own land for personal use to be interstate commerce (or commerce among the several States)? Doubtful. And so under the Rehnquist Court we have seen the doctrine of New Federalism – exemplified in Lopez and Morrision. In United States v. Lopez, 514 U.S. 549 (1995), the Chief Justice wrote that a federal law (the Gun-Free School Zones Act of 1990) which forbids "any individual knowingly to possess a firearm at a place that [he] knows...is a school zone” was “not an economic activity that might, through repetition elsewhere, have a substantial effect on interstate commerce. The law is a criminal statute that has nothing to do with "commerce" or any sort of economic activity.” And in United States v. Morrison, 529 U.S. 598 (2000), the Chief Justice in the opinion of the Court held that Congress did not have the power to establish the Violence Against Women Act of 1994, noting that, “under our federal system that remedy [for the violence against the victim] must be provided by the Commonwealth of Virginia, and not by the United States." Note than in dissent of Morrison, Mr. Justice Souter wrote that a, “mountain of data assembled by Congress...showing the effects of violence against women on interstate commerce."

So, especially under the Rehnquist Court, the Commerce Clause is indeed controversial or disputed. Maybe much more so today because Justices Kennedy and Scalia decided to vote with the majority in Gonzales v. Raich (2005) and allow the federal government’s prosecution of drugs deemed illegal by the federal government and legal by the state of California.

To me, despite Mr. Justice Scalia’s concurrence with the majority in Raich, the entire question of the extent of the Commerce Clause comes down to whether you believe in a dead Constitution, or a living Constitution.

I believe in a Constitution that is alive.

We do not live in 1787. Surely, at that time the Founders would not have understood the federal congress to be able to regulate the agriculture industry to the point that a farmer growing wheat on his own land, for his own use would constitute interstate commerce. But these are different times – the entire nation is a marketplace – the entire globe is a market place. In 1787, travel, communication, information, production, marketing…everything was local and it was slow. That is simply not the case anymore. When I post this entry to my blog today, it is immediately readable all over the planet. When I drive my car, I’m engaging in interstate commerce. When I turn on my TV, I’m engaging in interstate commerce. It is taxing to think of any activity that we participate in anymore that does not, in some way, “exert[] a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect.” In today’s world, almost all activities, in aggregate, have an affect on the nation as a whole.

We do not live in 1787, and our Constitution is not dead.

Everything is commerce.