The Original Meaning of the Commerce Clause
Randy E. Barnett
The U.S. Supreme Court, in recent cases, has attempted to define limits
on the Congress's power to regulate commerce among the several states.
While Justice Thomas has maintained that the original meaning of "commerce"
was limited to the "trade and exchange" of goods and transportation
for this purpose, some have argued that he is mistaken and that "commerce"
originally included any "gainful activity." Having examined
every appearance of the word "commerce" in the records of
the Constitutional Convention, the ratification debates, and the Federalist
Papers, Professor Barnett finds no surviving example of this term being
used in this broader sense. In every appearance where the context suggests
a specific usage, the narrow meaning is always employed. Moreover, originalist
evidence of the meaning of "among the several States" and
"To regulate" also supports a narrow reading of the Commerce
Clause. "Among the several States" meant between persons of
one state and another; and "To regulate" generally meant "to
make regular"-that is, to specify how an activity may be transacted-when
applied to domestic commerce, but when applied to foreign trade also
included the power to make "prohibitory regulations." In sum,
according to the original meaning of the Commerce Clause, Congress has
power to specify rules to govern the manner by which people may exchange
or trade goods from one state to another, to remove obstructions to
domestic trade erected by states, and to both regulate and restrict
the flow of goods to and from other nations (and the Indian tribes)
for the purpose of promoting the domestic economy and foreign trade.
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