Does the Constitution’s Commerce Clause really entitle the federal government to tell us what kind of toilets we can use? Or prescribe our light bulbs? Or force us into government controlled health care? Or tell us we can’t drain a swamp on our own property?
Congress claims the Commerce Clause grants it the power to do all those things, and since the 1940s, the Supreme Court has rarely challenged this claim. But is it correct?
When the American people debated whether to approve the Constitution, the subject of the Commerce Clause came up. What did they say about it? A new article answers those questions.
The article is entitled The Meaning of “Regulate Commerce” to the Constitution’s Ratifiers, and it was just published in a peer-reviewed journal. It’s a survey of the entire record of the debates over the Constitution held from 1787 to 1790. It finds this: Congress’s pretensions to regulate the entire economy under the Commerce Clause are plain wrong. Both the advocates of the Constitution and its opponents would have agreed on that point.
The article explains that during the Founding era, the phrase “regulate Commerce” had a very specific meaning. It referred to trade regulations and some related fields, such as navigation and marine insurance. It did not refer to manufacturing, agriculture, land use, most criminal law, or anything else outside those areas.
The article also rips apart arguments raised by left-leaning academics to justify an overreaching federal government. You can read the article here.
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