Journal of Law & Politics Online
Two Early Events that Can Help Us Better
Understand the Commerce Clause
by Steven T. Voigt
Volume 30, Spring 2015
The commerce clause has been called the “primary source for the regulatory expansion of the national government” that courts have read to grant “virtually unlimited regulatory power over the economy to the federal government.” Article I, Section 8, Clause 3 of the Constitution provides Congress with the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Courts today hold that the commerce clause enables Congress to regulate beyond “the channels of interstate commerce” and beyond “persons or things in interstate commerce,” and that it even reaches “those activities that substantially affect interstate commerce.” The Supreme Court has further stated that the commerce power can reach activities that are “local” and those that “may not be regarded as commerce.”
One of the ways we can better understand whether the commerce clause was intended to be broadly understood as it is viewed by many today, or much more narrowly instead, is to examine some of the earliest applications of the federal commerce power and the debates associated with those efforts. There exist two early debates that have not garnered much attention in academic literature. In the 1790s and early 1800s, Congress debated, first, whether the federal government could build a national highway and, second, the federal government’s role in responding to major seaport epidemics. The debates and commentary associated with both of these examples support the view that modern commerce clause jurisprudence is wayward from what this power originally was and truly is.