Commerce Clause

Summary

The Commerce Clause has gone through major mutations over the course of the country’s history resulting in a variety of cases giving and take powers from the federal government over the centuries.

The Commerce Clause

“The Congress shall have Power To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”  Article 1, Section 8, Clause 3 of the U.S. Constitution

One of the most litigated pieces of the Constitution, the Commerce Clause has been a linchpin for much subsequent legislation. The interpretation of the Commerce Clause has opened the door to government reaching into business dealings even down to individuals and what they do with their own property. Why did the founders originally write this clause and what did they have in mind?

State Infighting

As an assembly of independent colonies, each had their own ideas of what was best for them and their people. While this general principle allows for each state to make adjustments for their locality, there was a threat to the nation as a whole, if there was to be a nation. George Washington noted such a threat when he wrote to Benjamin Harrison and said that “the disinclination of the individual States to yield competent powers to Congress for the Federal Government—their unreasonable jealousy of that body & of one another—& the disposition which seems to pervade each, of being all-wise & all-powerful within itself, will, if there is not a change in the system, be our downfall as a Nation.”

“The king of New York levied imposts upon New Jersey and Connecticut, and the nobles of Virginia bore with impatience their tributary dependence upon Baltimore and Philadelphia. Our discontents were fermenting into civil war.” – Fisher Ames

If we attempt to look at the Biblical backing for intentionality here we can most likely find the principle of equal weights and measures (Lev. 19:35-36, Prov. 11:1). Just like separate nations, states could look out for their own interests and put taxes and penalties on goods and services crossing state lines. This, for instance, put’s the thumb on the scale of a contract between someone in New York and someone in New Jersey as opposed to the equal contract of two parties in a single state.

International Trade

The state infighting was not only threatening between the states but also beyond the borders of the disunified states. Other nations were finding it difficult to trade with all the individual states and were reticent to do so.

Hamilton in Federalist 22 spoke of the German empire’s difficulty with the states. “The interfering and unneighborly regulations of some States, contrary to the true spirit of the Union, have, in different instances, given just cause of umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and discord than injurious impediments to the intercourse between the different parts of the Confederacy. ‘The commerce of the German empire is in continual trammels from the multiplicity of the duties which the several princes and states exact upon the merchandises passing through their territories, by means of which the fine streams and navigable rivers with which Germany is so happily watered are rendered almost useless.’”

In the 1888 case, Kidd v. Pearson, Justice Lamar in the decision of the court reflected “It was said by Chief Justice Marshall that it is a matter of public history that the object of vesting in Congress the power to regulate commerce with foreign nations and among the several states was to insure uniformity for regulation against conflicting and discriminating state legislation.” Such state legislation that deterred trade amongst the states.

The same Biblical principle as applied to states is the motivation for nations. Open and free trade eliminates interference of unbalancing scales between two negotiating parties. Germany trading with Virginia should be just as simple as trading with Connecticut.

Landmark cases

Cases involving the Commerce Clause have been increasing as opportunity to abuse it have surfaced. Bork and Troy noted, “the early Congresses relied upon the Clause sparingly. Because Congress so rarely invoked the Commerce power, the Supreme Court had scant opportunity to evaluate the scope and meaning of the Clause in the first hundred years of the Union, other than in the few cases (Gibbons). In fact, the trusted Prentice and Egan treatise on the Commerce Clause declares that ‘such a history as this can, it is believed, find its parallel in no other branch of constitutional law.’”

Gibbons v. Ogden

The case referred to above, in 1888, was Gibbons v. Ogden. Perhaps a bit more true to the original purpose, it determined that the U.S. Congress did have the right to control interstate waters in commerce, knocking down a monopoly of riverboat transport in New York. As mentioned in the historical outline above, equal weights and measures across state lines should be in view as we apply this to Gibbons v. Ogden. Breaking a monopoly that gives preference for one state over another seems to apply that principle.

You shall do no wrong in judgment, in measures of length or weight or quantity. You shall have just balances, just weights, a just ephah, and a just hin: I am the Lord your God, who brought you out of the land of Egypt. (Lev. 19:35-36)

From this early case, you can begin to see the mutation of the Commerce Clause into something unrecognizable. You’ll also note that we jump 50 years into the future, in US v. Darby (1941), to start having any movement on the meaning of the clause. This will be adjacent to the time frame historians refer to as the “Constitutional Revolution” of 1937 where the court moved to a focus on civil liberties.

US v. Darby

In US v. Darby, the Fair Labor Standards Act was called into question. Could congress use the Commerce Clause to regulate wages and working conditions? Keep in mind that on our walk through judicial history we are primarily concerned with not only the Biblical morality of the questions at hand but also the right government to preside over the result. In US v. Darby we will certainly be concerned with the contractual nature of an agreement and fulfilling his promise to pay the wage (Deut. 24:14-15) but we also keep in view the right of the agreement between the two parties to happen, independent of a third party in the agreement (Matt. 20:1-16). We’re starting to veer from the Biblical grounding of the constitutional law. There are a few other related cases concerning wages and working conditions that don’t call out the Commerce Clause but similarly empower the federal civil government to interfere with just contracts (Lochner v. New York, West Coast Hotel Co. v. Parrish)

Wickard v. Filburn

In possibly the most egregious case of government interference in private business is Wickard v. Filburn argued right after US v. Darby in 1942. The Agriculture Adjustment Act of 1938, the child of the unconstitutional act of the same name in 1933 under FDR’s New Deal, dictated a limit on how much wheat could enter the market, and effect the total market in aggregate. Filburn had grown, but not sold, extra wheat for his own use (although the facts may be in question here on the sale of this wheat on the black market). It was argued that the wheat grown by Filburn would have otherwise been bought by him in the open market and thus, even though he did not engage in commerce, he was in violation of the act and was penalized. In US v. Darby the government got between two parties in negotiations, now with Filburn they acted as the unjustly treated party and ruled on their own behalf. Assuming the facts, in an act of “provid[ing] for his relatives, and especially for members of his household,” (1 Tim. 5:8) Filburn was put between God’s law and man’s law. Be penalized or be seen as “worse than an unbeliever.”

US v. Lopez

These cases ruled in the 1940’s set the tone for the next 50 years until the Commerce Clause emerged again in 1994 in US v. Lopez, where a ruling against Lopez would have taken the Commerce Clause into laughably absurd stretches of the word commerce. Congress passed the Gun-Free School Zones Act in 1990 and this case challenged the authority of the federal government to enact gun-free zones under the guise of the Commerce Clause. The act was found unconstitutional as the restriction on guns is clearly not commerce but was updated in 1996 to include the stipulation that it would be legal if the gun had moved between states. A law still in effect today.

Because this case tries to tie gun control to commerce it is hard to stick to the thread of Biblical commerce without getting distracted by gun related topics. I will not attempt to find a Biblical grounding for the application in Lopez because it is so far of field in relation to the Commerce Clause that it should be apparent that this was a ends looking for a means in what ever way possible.

Gonzales v. Raich

The emergence of states defiance of federal marijuana laws came Gonzales v. Raich with the strong backing of the Wickard v. Filburn precedent that local cultivation (of wheat or marijuana) has an impact on national supply. Thus the court upheld the Controlled Substances Act (1970). Perhaps the most interesting difference between Raich and Lopez was the separate opinion from Justice Scalia where he agreed with the overall ruling but not based on the Commerce Clause but on the Necessary and Proper Clause.

This has similar non-commerce based justification in that it was driving a drug related agenda through the small window of the Commerce Clause. This decision lack the same Commerce Clause justification as Lopez but flips to an affirmative decision for the state because of Justice Scalia’s call out of Necessary and Proper. Again, hard to criticize the Biblical application of the Commerce Clause here because there really isn’t one.

NIFB v. Sebelius

One of the most highly contentious pieces of legislation in recent history, the Affordable Care Act aka Obamacare, was litigated in NIFB v. Sebelius on multiple points, one of which was the individual mandate in reference to the Commerce Clause. The court was asked if congress could force participation in a market where the non-participation would have an effect on interstate commerce. Justice Roberts stated that, “to an economist, perhaps, there is no difference between activity and inactivity; both have measurable economic effects on commerce. But the distinction between doing something and doing nothing would not have been lost on the Framers, who were “practical statesmen,” not metaphysical philosophers.”

The courts rejected this application of the Commerce Clause as unconstitutional in respect to the individual mandate with Justice Roberts continuing to say, “the Framers gave Congress the power to regulate commerce, not to compel it, and for over 200 years both our decisions and Congress’s actions have reflected this understanding. There is no reason to depart from that understanding now.”

And with this case we’ve come very far from applying equal weights and measures across state lines. We have arrived at a case where everyone was potentially forced to enter into a contract to purchase a product from a private company by force of government. While there are cases of personal obligation that God calls us to in our relationship with our neighbors, paying into a government mandated health insurance pool is not one. This starts to look like a violation of the commandment to not steal, implemented through the government. It also opens the discussion of spheres of government and responsibility and if all the commands of God should be civil laws.

Conclusion

What started out as a way to create equal weights and measures between contractual parties (Nations, States, Indian Tribes) turned into an argument that individuals need to pay for goods and services they do not want and did not ask for.

There is no possibility, today, of adhering completely to the original constitutional design. Such a daring plan would require overturning the New Deal, the Great Society, and almost all of the vast network of federal legislation and regulation put in place in the last two-thirds of the twentieth century. It appears that the American people would be overwhelmingly against such a change and no court would attempt to force it upon them. - Bork & Troy

Final Note: Civil Rights Act of 1964

The largest piece of legislation that found support in the mutated Commerce Clause was the Civil Rights Act of 1964. Primarily in defining “public accommodations” and the role they played in federal commerce. I will outline the connection to the Civil Rights Act in a future article but with the fact that the Commerce Clause set precedent in civil rights cases until present day (303 Creative LLC v. Elenis, 2022; Masterpiece Cakeshop v. Colorado, 2017).