How Erroneous Commerce Clause Interpretations Threaten Liberty

by VINCENT GIOIA June 18, 2012

The decline of freedom in the United States can be directly traced to the Commerce Clause in the Constitution. The framers are not to blame for this travesty; they did a remarkable job using the language and semantics of the day to create a unique document which was the foundation of the most successful country of all time, imbuing its citizens with unheard of freedom and liberty. Never before or since has a country been bestowed with such a document, providing a foundation of principles of self-governance that fulfills the aims of the Declaration of Independence:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness".

These unalienable rights are based on freedom from an overwhelming government that does not control and dictate all essential aspects of the lives of its citizens. This was accomplished by limiting the authority of the federal or national government. What could be simpler and clearer than to list specific powers of the Congress in Article 1, Section 8, while reserving all other authority to the states? [The Tenth amendment states "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people".] By doing so it was intended that the Constitution, the basic law of the country, would delimit what the government could do, and inferentially, what it could not do.

Having come from despotic countries, those who wrote the Constitution realized that to have and preserve freedom it was necessary to create a fundamental law that would limit the power of the state over the people. For that reason much emphasis was placed on limiting the role the national government would have to only those essential to the protection of the states and the people and to establishing rules necessary to avoid overlapping regulations.

For example: borrowing money; rules of naturalization (note, ‘naturalization', not immigration); bankruptcy; ‘coining money' (note the exclusive jurisdiction for creating money is the government, not some unelected agency like the Federal Reserve Bank); post office and ‘post' roads; promotion of science and protection for inventors and authors; establishing courts in addition to the Supreme Court; defining and punishing piracy; declaring war and establishing an army and navy and rules to govern them; establishing a militia, but leaving to the states to determine the details of the militia when not in the service of the country as a whole; establishing a district for the seat of government and to make laws necessary and proper for execution of the limited authorities granted to the federal government.

Being erudite persons, the Constitution was written in clear language using the meaning of words at the time they were written.

As to the power of the Congress regarding commerce, here is what the Constitution says:

Article I, Section 8, Clause 3:

[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;

To the framers and to anyone knowledgeable about the English language, this congressional power established by the Constitution would seem to be quite clear.

Also clear is what the term ‘commerce' meant at the time the provision was written:

"Commerce", according to Samuel Johnson's Dictionary (1785), means "trade or intercourse, exchange of one thing for another, buying and selling."

Commerce was defined then as it still is today, as "trade or intercourse, exchange of one thing for another, buying and selling". The definition has not changed. Webster's Random House Dictionary 1997 defines commerce as "an interchange of goods and commodities between different countries or between areas of the same country; trade." The Oxford American Dictionary of 2007 defines commerce as, "The activity of buying and selling". The foregoing is the original meaning of commerce. It is plain and simple. It is not ambiguous. It has never been changed by any constitutional amendment in accordance with Article V of the Constitution.

So why is it so difficult to understand that the power to regulate ‘commerce' "among the several states" obviously means interstate commerce?

If this provision is so clear and understandable, why has it become the gateway for the government through congressional power to control virtual every aspect of our lives? The answer my friends is "Power corrupts and absolute power corrupts absolutely" [with apologies to Lord Acton].

The reason for this usurpation of power is twofold: for some it is a pure desire to obtain and maintain power, and for others it is an irresistible urge to do ‘good'. Politicians have learned that government resources (tax payers' money and the force of government regulations) can be used for personal gain, political or financial (or both), and for others the extent that ‘helping' others has no boundary except what a human mind can conjecture. These objectives are obtainable by extending the scope of government beyond what the founders envisioned and beyond the clear language of the Constitution's limits on the legislative branch. The mechanism which has proven successful to such ends has been the commerce clause.

And so with acceptance of the Constitution, the United States of America began. But no sooner than the first breadths of liberty were drawn, than one of the three established ‘separate and equal branches of government', the Judicial Branch, started down the path to dissimilate the glorious document.

As we know, the Constitution is quite clear about Congress's power under the Constitution including the power to regulate commerce among the states.

But in the first challenge of the government's right to regulate commerce brought to the U.S. Supreme Court in 1824 in a case known as Gibbons v Ogden, the Supreme Court began its path to reducing our liberty. The facts of the case are not particularly relevant but the decision began the long path to government intervention well beyond the original intent of the founders. In the Gibbons case Chief Justice Marshall established the idea that the Constitution did not say what it said; it said whatever the court decided it said.

In Gibbons Chief Justice Marshall set forth a sweeping ruling that permanently affected the interpretation of the Commerce Clause. First, Marshall associated the term "commerce" with a wide, ambiguous definition of what constituted such an activity.

"Commerce, undoubtedly, is all traffic, but it is something more, it is intercourse."

This phrase is significant because it applied a broad interpretation to the clause. Most importantly Marshall concluded that commerce "cannot stop at the external boundary line of each state, but may be introduced into the interior."

Therefore according to Marshall, the ability to regulate extended to all aspects of commerce, inside a state as well as amongst "the several states." Gibbons v. Ogden also established the supremacy of Congress over individual states when regulating interstate commerce. By stating that "this power [...] is complete in itself" and "may be exercised to the utmost extent," Marshall not only struck down a state law but also established that Congressional action in interstate commerce was supreme to any state regulation.

So despite the fact that the definition of "commerce" was known at the time [see Samuel Johnson's Dictionary, supra] to be contrary to that used by Marshall, he chose to ignore the then established definition and offer an expanded definition which correspondingly expanded the limited authority provided to the congress as designated in the Constitution.

For nearly a century after Marshall's ruling, decisions of the Supreme Court under the Commerce Clause dealt rarely with questions of what Congress might do in the exercise of its granted power under the Clause and almost entirely with the permissibility of state activity which it was claimed discriminated against or burdened interstate commerce.

But then in Wickard v. Filburn (1942) the Supreme Court expanded the original interpretation of the commerce clause to cover intrastate economic activity that was said to "affect" interstate commerce, and the door was thrown wide open for federal regulation. After all, what activity cannot be argued to "affect" interstate commerce, especially when activities purely intrastate commerce are considered to be interstate commerce as Chief Justice Marshall famously already concluded more than one hundred years earlier?

One current Justice, Clarence Thomas, has recognized the deviation from the original intent of commerce regulation by Congress and has eloquently set forth the correct understanding of the commerce clause in the Constitution in his dissenting opinion in United States v. Lopez , 514 U.S. 549, 584 (1995); here are some salient quotes from this sane voice of authority:

"The Founding Fathers confirmed that most areas of life (even many matters that would have substantial effects on commerce) would remain outside the reach of the Federal Government. Such affairs would continue to be under the exclusive control of the States. ..."

"This is the purpose of the Tenth Amendment, to reserve undelegated powers to the states and the people.

Yet, despite being well aware that agriculture, manufacturing, and other matters substantially affected commerce, the founding generation did not cede authority over all these activities to Congress. ... ".

"The Constitution not only uses the word "commerce" in a narrower sense than our case law might suggest [decisions by the U.S. Supreme court], it also does not support the proposition that Congress has authority over all activities that "substantially affect" interstate commerce. ...

The Supreme Court has rewritten the Constitution, beyond the Framers intent:

Clearly, the Framers could have drafted a Constitution that contained a "substantially affects interstate commerce" Clause had that been their objective. ...".

Thomas made the following observation that all objectively minded people viewing the Constitution would find it difficult to refute:

"If Congress may regulate all matters that substantially affect commerce, there is no need for the Constitution to specify that Congress may enact bankruptcy laws, cl. 4, or coin money and fix the standard of weights and measures, cl. 5, or punish counterfeiters of United States coin and securities, cl. 6, [or] establish post offices and post roads, cl. 7, or to grant patents and copyrights, cl. 8, or to "punish Piracies and Felonies committed on the high Seas," cl. 10. It might not even need the power to raise and support an Army and Navy, cls. 12 and 13. ...  [or] regulate international trade and commerce with the Indians. As the Framers surely understood, these other branches of trade substantially affect interstate commerce."

"Put simply, much if not all of Art. I, § 8 (including portions of the Commerce Clause itself), would be surplusage if Congress had been given authority over matters that substantially affect interstate commerce. An interpretation of cl. 3 that makes the rest of § 8 superfluous simply cannot be correct. Yet this Court's Commerce Clause jurisprudence has endorsed just such an interpretation: The power we have accorded Congress has swallowed Art. I, § 8."

"Indeed, if a "substantial effects" test can be appended to the Commerce Clause, why not to every other power of the Federal Government? There is no reason for singling out the Commerce Clause for special treatment. Accordingly, Congress could regulate all matters that "substantially affect" the Army and Navy, bankruptcies, tax collection, expenditures, and so on. In that case, the Clauses of § 8 all mutually overlap, something we can assume the Founding Fathers never intended. ..."

In the Obamacare case now before the U.S. Supreme Court, when asked at oral argument if there were any limits to the Commerce Clause, the Government was at a loss for words. Those who might disagree would say there are limits but I defy anyone with the expansionist interpretation of the commerce clause to cite even one.

Does anyone believe that those writing and those accepting the Constitution as the law of the land had in mind or intended that the Commerce Clause would confer unlimited power on Congress?

I agree with Justice Thomas:

"Because the Supreme Court's interpretation makes other phrases irrelevant, rewrites the Constitution, and supersedes the Tenth Amendment's protection of individual and States rights, the interpretation [beyond the original language and intent] is arbitrary and unreasonable, contrary to the grant of power, and subject to nullification under natural law principles".

Vincent Gioia is a retired patent attorney living in Palm Desert, California. His blogs at and he may be contacted at

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