Constitution Daily

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The secret life of the Commerce Clause

April 4, 2012 by Carl Cecere


Painting by Junius Brutus Stearns of the Constitutional Convention of 1787

Last week, an epic series of constitutional challenges finally made its brawling, hotly anticipated way into the U.S. Supreme Court’s stately chamber, as the Court heard argument on the fate of the Patient Protection and Affordable Care Act, Congress’s massively complex overhaul of the U.S. health care system.

The heart of that battle concerns whether Congress possesses the power to force individuals to purchase a product—namely health insurance—simply by virtue of their residence in the United States.

The decisions in these cases will be the Roberts Court’s first major foray into the scope of Congress’s authority to “regulate Commerce . . . among the several States,” some of the most hotly contested territory in all of constitutional law.

For decades, the Court has routinely upheld challenges to Congressional actions that have regulated, in the name of interstate commerce, matters that do not actually cross state lines, such as racial discrimination, home-grown marijuana, or even a farmer’s consumption of his own wheat, on the theory that even these isolated activities affected interstate commerce when aggregated with other similar activities. While supporters find such robust Congressional authority necessary to combat complex social problems, critics of this “effects” theory vociferously argue that it upsets the national balance of federalism, and sacrifices individual liberty by ceding it to the national government.

Now the Roberts Court must decide for itself where the line should be drawn between federal and state; national and local. In doing so, it would do well to consider the views of the Framers. They have a rich story to tell, containing some fascinating secrets, that can help us better understand the Commerce Clause and place the individual mandate in context.

The Constitutional Sources Project, the nation’s leading online repository of documents relating to the Founding, has teamed up with groups of Harvard Law School Students in order to share this story with the public, the parties before the Court, and the justices themselves. What follows is just a few of the fascinating tidbits they unearthed.

The want of a central authority over commercial affairs was one of the major weaknesses of the Articles of Confederation, and a central animating purpose behind the Constitutional Convention that convened in Philadelphia in the summer of 1787. Under the Articles, states had enacted a variety of trade regulations to benefit themselves at their sister states’ expense, engendering, as James Madison put it, “rival, conflicting and angry resolutions.” The Convention aimed to put an end to such mischief with the Commerce Clause.

Madison, the leading Federalist at the Convention, would later claim that this purpose also placed a very tight limit on Congress’s power over commerce. To him, the commerce power did not permit Congress to legislate private behavior at all; it only empowered Congress to regulate the states themselves—to overturn or counteract the anti-trade regulations that individual states had passed under the Articles.

What Madison really thought

Madison’s forceful vision has been adopted by those that claim the Court has gone too far in granting Congress expansive power over commerce. But the first great secret of the Commerce Clause is that Madison was, to say the least, overselling things. Not only did Madison himself sign off on a far broader vision of Congress’s power at one point during the Convention, but his view was not universally held at the time the Constitution was adopted and ratified.

Congress’s power over commerce first sprang into life through a resolution passed by the body of delegates to the Constitutional Convention—including Madison’s Virginia Delegation—to grant Congress the power “to legislate in all cases for the general interests of the Union, and also in those to which the States are separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation.” This was a grant of almost plenary authority to Congress to regulate virtually any feature of national life, for essentially any purpose it felt compelled to address, and was in no way compatible with what Madison had always contended to be the true meaning of the clause.

Of course, that expansive power does not appear in the Constitution. It was instead limited to “regulation” of that portion of “Commerce” “among the Several States.” The change was made by the Committee of Detail, a subcommittee of the Convention, which was charged with organizing the individual resolutions passed by the Convention and reducing them to writing.

The intellectual leader of the committee was James Wilson, delegate from Pennsylvania and future Supreme Court Justice. Wilson would later explain to the Convention that the Committee ultimately deviated from the Convention’s earlier resolution because the Committee felt a broader power would confer too much discretion to Congress.

While Wilson’s Committee limited the commerce power as a means to rein-in Congress, Wilson himself still understood the authority conveyed to be considerably broader than Madison did. To Wilson, Congress would not be empowered to act on matters purely “within the bounds of a particular state,” but in his view, “whatever object of government extends, in its operation or effects, beyond the bounds of a particular state, [belongs] to the government of the United States.”

Wilson’s explanation of the Commerce Clause’s meaning, permitting Congress to regulate even objects of government entirely within one state so long as their “effects” cross state lines, sounds a great deal like the much maligned “effects” test used today in measuring the scope of Congress’s commerce power. From this, a strong case could be made for the constitutionality of the individual mandate. After all, the burden of providing for the poor and uninsured is one of the major factors driving the ever-escalating cost of health care, and the effects of these forces can be felt nationwide.

To be fair, just because Wilson related his explanation for the meaning of the Commerce Clause does not mean that everyone at the Convention heard him or agreed with what he was saying. Madison could have quite reasonably understood the text to have a different meaning, and other members of the Convention, notably George Mason, expressed an understanding far closer to Madison’s than Wilson’s. But the fact that Wilson himself, the putative author of the clause, understood it to have a meaning almost identical to that utilized by the present Court should at least quiet criticisms that the modern test is illegitimate.

An unprecedented mandate?

The second great secret of the Commerce Clause is that the individual mandate is not entirely unprecedented. While several of the lower courts to have considered the cases now before the court—and indeed, the Congressional Budget Office itself—suggested that Congress had never before compelled individuals to purchase products from private companies, that is not entirely correct. In fact Congress enacted just such a requirement in 1793, just two years after ratification of the Constitution. In the Militia Act, Congress required all members of the militia, which was every able-bodied male ages 18-44, to purchase and maintain not only a musket, bayonet, powder and balls, but also “a knapsack, a pouch, with a box therein” “shot-pouch” and “powder-horn.”

Of course, there are some serious problems with trying to use the Militia Act to glean the meaning of the Commerce Clause. The Constitution provides Congress a specific power to “provide for organizing, arming, and disciplining, the Militia.” So Congress wasn’t utilizing the Commerce Power when it passed the Militia Act. And not all Congressional powers are created equal. Congress can do things under some of its powers, especially those that relate to national security, that would be absurd to do under others. We would not question Congress’s power to draft citizens to serve in the armed forces, even if it were to fight an unjust war under unfit command. But that does not mean that Congress could pit citizens against each other for sport, as in The Hunger Games, even if doing so would raise a great deal of tax revenue.

This doesn’t necessarily make the Militia Act completely irrelevant, however. Some of challengers to the mandate seem to suggest that Americans possess a fundamental individual liberty interest outside the Commerce Clause, perhaps lodged in the Ninth or Tenth Amendments, that limits all of the national government’s powers, and prohibits the government from forcing people to buy things. The Militia Act seems to throw water on this idea. That Congress would feel empowered decide for the militiaman that he must carry his kit in a knapsack (with a box, no less) rather than leave that choice to him, his state, or his unit, suggests that it did not feel itself subject to any such free-floating economic freedom.

But what if this principle of economic liberty resides within the Commerce Clause itself? This seems a closer question. After all, Congress is only allowed to regulate “commerce.” Most people think of “commerce” as limited to voluntary, bargained-for exchanges of goods and services (And, in fact, this was also the predominant meaning that attached to the term during the Founding Era). An individual’s decision not to enter into a transaction might not fit into that conception of “commerce.”

Not one, but three commerce clauses

This leads us to the final secret of the Commerce Clause: there is not one commerce clause, but three. In Article I, section 8, Congress is empowered “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Because the same term “Commerce” modifies three different regulatory objects, we might get a sense of what the term means by examining how it was used in those other contexts.

And one of the very first things the new national government did was legislate interactions with the native tribes, through a series of Trade and Intercourse Acts. Some of these laws explicitly regulated trade. And others could be connected with Congress’s other powers, such as the treaty power. But some, such as those punishing “any crime upon, or trespass against, the person or property of any peaceable and friendly Indian or Indians,” must fall within a broader conception of the meaning of “Commerce” than mere trade. And this broader meaning might be enough to include regulating people’s decisions on how they pay for health care.

Continuing the debate

The point in sharing these secrets is not to demonstrate that either side has the better end of history in the debate over the constitutionality of the individual mandate. To the contrary, this nation’s constitutional history will rarely, if ever, prove neat, clean, and universal enough to unequivocally resolve our constitutional disputes. But the fact that both sides can draw support for their position from that history certainly suggests that none of their concerns are frivolous or illegitimate. We should remember that in today’s debate over the individual mandate, we are only continuing a debate that started with the Founders themselves. And that ought to temper the terms of our national discussion. Indeed, if the debate over the Commerce Clause shows us anything, it is that our history belongs to all of us.

Carl Cecere is an appellate lawyer in Dallas, Texas, and a member of the Constitutional Sources Project’s Legal Advisory Board.

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