Welcome back
to the Constitution Line By Line.
I'm Senator Mike Lee
and today we're continuing our discussion of Article One,
Section Eight.
This time we're gonna focus entirely on one
of the most important and heavily litigated clauses
of the whole Constitution.
That is the Commerce Clause.
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The text gives Congress the power "to regulate commerce
with foreign nations and among the several states
and with the Indian tribes".
The first thing that jumps out about this clause
is the word regulate.
In modern America, we've grown accustomed
to understanding regulation to mean rules or restrictions,
but that's not necessarily how the founders
would have thought about that word.
In this context the word simply means to keep regular,
that is to say to remove barriers and interruptions
that would otherwise impair and impede trade
between the states.
The fact that we understand the word regulate
in a very different way today has resulted
in a whole lot of confusion surrounding the clause.
You see the goal of the Commerce Clause was
to empower Congress to facilitate trade
between the states and conversely to prohibit the states
from engaging in economic balkanization
of the sort that we saw under the Articles of Confederation
before the Constitution was adopted.
As we mentioned in the last episode,
one of the biggest problems
with the Articles of Confederation was
that it was very difficult to conduct trade
across state lines,
due to different laws and standards and tariffs set up
by state governments sometimes with the specific purpose
of favoring commerce from their own state
at the expense of commerce from other states.
You see the founders wanted the United States to function
as a unified nation and a unified economy.
Because of the Commerce Clause's broadness and vagueness,
interpretations of what limits it might actually impose
on Congress have differed over the years
and the clause continues to be the source
of some legal controversy even to this day.
While few dispute that Congress has the power
to set the terms by which we deal with other nations,
the phrase, "to regulate commerce"
when applied to the states can be read
in a number of different ways.
From the very beginning,
the idea that Congress should have
only certain limited powers and that the powers enjoyed
by Congress should be only those specifically enumerated
in the Constitution was key to the drafting
of the Constitution.
It was also key to its ratification.
In fact, I don't think it would have been either signed
by those attending the convention or ratified
by the states in the absence of that understanding.
That understanding, which was implicit in the original text
of the Constitution, was made even clearer a few years later
by the adoption of the 10th Amendment.
But the idea is that Congress has only a few powers,
those that are made federal by the Constitution
and that in the absence
of a power being specifically designated
as federal by the Constitution,
that power is retained by the states respectively
or by the people.
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The Commerce Clause has been used and manipulated
to a significant degree by those who wanna sort of undo
that understanding,
for those who want to see Congress doing more,
for those who want Congress
to have an almost open-ended regulatory authority.
In the 21st century, it's difficult
to identify many commercial activities
that aren't in one way or another deemed subject
by the federal courts as subject to Congress's authority
under the Commerce Clause.
Now, if we interpret the word regulate
to mean the ability to legally prescribe certain behaviors
and if we also interpret the concept
of interstate commerce to include any
and every activity that when measured
in the aggregate has a substantial effect
on interstate commerce,
then there would seem to be no significant limit
to Congress's authority to regulate business affairs
and economic activity generally.
The narrowest way you can read the Commerce Clause is
to say that it prohibits states from messing
with interstate commerce if they can't unduly burden
or unreasonably interfere with interstate
or foreign commerce.
The Supreme Court has in fact embraced this view,
but just embraced it non exclusively
meaning they've said that the Congress has power
beyond the authority to prohibit states from messing
with interstate commerce,
but it includes that power and it includes it in a way
that doesn't require Congress to act affirmatively
to stop it.
In other words,
Congress certainly does have the power to enact legislation
saying a state cannot mess with interstate
or foreign commerce in the following ways
and here are the remedies by which
that prohibition can be enforced.
But even though Congress hasn't adopted that,
the Supreme Court of the United States has, over time,
interpreted the Commerce Clause as doing that
and we call this interpretation,
the so-called Dormant Commerce Clause.
That has a couple of permutations.
Under one permutation, the more commonly accepted one,
the Supreme Court has said that a state
may not deliberately discriminate against
an article of commerce based on its origin
or destination, out of state or outside the United States,
unless the state can show
that this is the least intrusive means
of achieving a legitimate non-discriminatory objective.
Basically it gives the courts a way of making sure
that states aren't deliberately engaging
in economic balkanization by overtly favoring
or disfavoring commerce,
based on its origin, out of state
or outside the United States.
The other permutation of the so-called
Dormant Commerce Clause deals
with the incidental burdening of interstate commerce
by an objectively neutral state law that is passed,
but ends up having the effect of messing
with interstate commerce.
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Outside the Dormant Commerce Clause,
we look to the Supreme Court for guidance
on what exactly it means
and how far Congress's affirmative authority can extend.
For most of the history of the Republic,
most of the time under which we've operated
under the Constitution of the United States,
the Commerce Clause has been interpreted and understood
to give Congress the power to regulate channels
or instrumentalities of interstate commerce
and interstate commercial transactions
and things like interstate airways, airwaves, waterways,
and so forth that Congress would have
this power affirmatively.
But since April 12th, 1937,
the Supreme Court has also interpreted the Commerce Clause
to give Congress the power to regulate economic activity
that in the aggregate,
even if the activity in question takes place
in one state at one time can be said
to have a substantial effect on interstate commerce.
That's deemed and has been deemed
since 1937 as within Congress' authority
to regulate interstate commerce.
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Only three times since April 12th, 1937
has the Supreme Court identified something
that Congress has enacted as being outside
of Congress' Commerce Clause authority.
And, of those three, really only two of them count
because in the third instance,
the Supreme Court went on to say
that what Congress did could be justified
under another provision of the Constitution.
Many have criticized the way
that the Supreme Court has interpreted the Commerce Clause
in this respect as excessively broad.
I mean, there would have been no need
for many of the other freestanding powers in Article One,
Section Eight if the founding fathers had understood
and had the public understood at the time
of the drafting and ratification of the Constitution,
that Congress would have the power to regulate any
and every activity that, when measured in the aggregate,
would have a substantial effect on interstate commerce.
This was a view expressed at length,
in a concurring opinion in the 1995 decision,
of the United States versus Lopez
in which the Supreme Court
invalidated key provisions of the Gun-Free School Zones Act.
One of the reasons why this matters
and one of the reasons why it's important for people
to take into account critiques like those found
in Justice Thomas's concurrence
in the United States versus Lopez is that,
to the degree that any power of Congress is interpreted
as being open-ended and unlimited,
then it renders the 10th Amendment
and the broader understanding of Federalism
found in the Constitution, as sort of nugatory.
It renders it dead letter.
The fact is that the Founding Fathers,
those who drafted the Constitution
and those who were involved in its ratification,
understood these words as creating
only limited enumerated powers.
They didn't understand any provision
as providing an open-ended regulatory hook,
as supplying general police powers to the federal sovereign.
And if they had understood that at the time,
had those words been understood in 1787
when they were drafted
or throughout the ratification process
as providing an open-ended source
of virtually unlimited authority,
then the Constitution would never have been agreed to
at the Convention,
much less ratified by the requisite number of states.
This is one of the reasons why I think this will continue
to be an important issue
before the Supreme Court of the United States,
because to the extent that the Commerce Clause
gives the power to Congress
to regulate anything and everything,
then Congress' authority has ceased to be limited.
Remember, James Madison described the powers of Congress
in Federalist Number 45 as being few and defined
and those powers reserved to the states as numerous
and indefinite.
In many respects, since 1937, we flipped that concept
on its head, specifically through the Commerce Clause
where Congress now has powers that could be described
as numerous and indefinite.
Thank you for joining me for this episode
of The Constitution Line By Line.
In the next episode,
we're gonna continue looking at Article One,
Section Eight, we'll cover a number of other clauses,
including those dealing with the power to coin money
and regulate the value thereof
and Congress' authority to define the terms
of intellectual property rights.
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I hope you'll join us again next time.
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