Today, the Virginia House of Delegates overwhelmingly passed House Bill 1438 (HB1438), the Intrastate Commerce Act. The bill, “Provides that all goods produced or manufactured within the Commonwealth, when such goods are held, retained, or maintained in the Commonwealth, shall not be subject to federal law, federal regulation, or the constitutional power of the United States Congress to regulate interstate commerce.”

The vote was 65-33.

For decades, using a tortured definition of “interstate commerce,” Congress has claimed the authority to regulate, control, ban, or mandate virtually everything – from wheat grown on one’s own land for personal consumption, to weed grown in an individual’s own home for the same purpose, to guns manufactured, sold and kept in state boundaries, and everything in between. And, unfortunately, the Supreme Court has largely condoned and even encouraged such reprehensible legislative behavior.

But today, Virginia is once again leading the way in saying “Back Off” to the feds – by standing up for the Constitution as the founders gave it to us.


If, like any legal document, the words of the Constitution (and its amendments, too) mean today just what they meant when it was approved by the ratifiers, then we must understand the original meaning of words in Article I, Section 8, Clause 3 of the Constitution – the “Interstate Commerce Clause.” It delegates to Congress the power to:

“regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

According to Constitutional scholar Randy Barnett, the original meaning of “commerce” was limited to the “trade and exchange” of goods and transportation for this purpose. The original meaning of “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.” “Among the several States” meant between persons of one state and another.

According to Constitutional scholar Rob Natelson, the commerce clause gave Congress power to regulate interstate commerce — not any “matters that have significant spillover effects across state lines.” The Constitutional Convention rejected the wording of the Virginia Plan, which arguably would have let the Federal government regulate any activity with interstate spillover. In other words, the Founders made the deliberate decision to leave many activities with spillover effects to the states.

Not included in this power to regulate commerce “across state lines” is the authority to regulate activites that are non-economic or solely INTRAstate, which the language of Virginia’s Instrastate Commerce Act addresses.


With the passage of a bill like HB1438, Virginia would become the first state to reject in one fell swoop the ludicrous and intellectually dishonest constitutional rationale that underpins so much federal activity, and reclaim the rightful authority to regulate commerce within its own borders.

Sources close to the Tenth Amendment Center tell us to expect that a number of other states will attempt to resist this federal overreach with similar legislation in 2011.


CLICK HERE – for the Tenth Amendment Center’s Intrastate Commerce Act Legislative Tracking page

CLICK HERE – for the Tenth Amendment Center’s model legislation, the Intrastate Commerce Act. We encourage you to send it to your state reps and senators and urge them to introduce and support this bill.

Michael Boldin

The 10th Amendment

“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.”



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