The Modest Original Meaning of the Commerce Clause
A sample of 157 cites to “regulation of commerce” in the constitutional debates shows that the power given to Congress to regulate commerce was not a very important power at the time and not a major explanation of why the Constitution was adopted. The four most important programs espoused by the framers under the cover of regulation of commerce were (1) nationalization of the state “imposts” or import taxes, (2) retaliation against the British for restrictions on West Indies shipping; (3) port preferences, and (4) an American Navigation Act, restricting access to American ports to American ships. All were deep-water shipping programs within the then-dominant economic philosophy of mercantilism. The first is a revenue issue better categorized as a part of the desperate need for federal revenue to pay off the Revolutionary War debts. None of the latter three proposals for restrictions on commerce ever amounted to much, even once allowed by the adoption of the Constitution. Regulation of interstate commerce was not a significant controversy at the time. Any significant content to the power to regulate commerce comes from evolution over time, and not from the original meaning.
Date of this Version
Calvin H. Johnson, "The Modest Original Meaning of the Commerce Clause" (March 18, 2004). bepress Legal Series. bepress Legal Series.Working Paper 200.