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Commerce Clause – Eileen Li

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Context

In 1781, five years after the colonies became free from British rule, the Articles of Confederation were implemented. This document was an agreement between the 13 states that attempted to establish the functions of the national government. The Articles allowed each state to have power over their own trade. They worked independently and competitively against each other, and even established trade barriers. Congress was prohibited from regulating any commerce, so the rising inflation rates could not be controlled, and America’s economy grew weak. In response to these economic problems, a convention was held in 1789. 

 

Common interpretation

The Commerce Clause was formed here, which gave Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” This clause is commonly interpreted as giving Congress power to regulate international and interstate commerce, and trade with Indian Tribes, as well as prohibit states from interfering with Congress’ decisions. 

 

Matters of Debate

However, the undefined meanings of the words “to regulate”, “commerce” and “among the several States” make this clause open to interpretation. For example, in the case of Gibbons v. Ogden, the word “commerce” was argued to include people, not just goods. Thomas Gibbons, given permission by the federal government to operate steamboats between New York City and the New Jersey coast, sued Aaron Ogden, who was backed up by the State of New York to do the same, after Gibbons was denied access to these waterways. In the end, the Court ruled in Gibbon’s favor. The argument was that the definition of “commerce” included the people carried in steamboats, so steamboats would be considered as commerce, and the powers of Congress from the Commerce Clause could be applied. The reasoning of Chief Justice Marshall was that “commerce” was not only buying and selling, but also intercourse and thus navigation. 

Another matter of debate was introduced in United States v. Darby, where the meanings of “to regulate” and “among the several States” were expanded. The FLSA (Fair Labor Standards Act) was passed in 1938, and set minimum wages, maximum hours, etc. Darby, a lumber manufacturer, was arrested after shipping lumber out of state while violating the FLSA. In this case, the Court reaffirmed this Act to be constitutional, which gave Congress the power to prohibit manufacturing goods inside states with the FLSA. Another reason why Congress was given this power was because intrastate commerce would affect interstate commerce, which the government was already in charge of by the Commerce Clause. Previously, the common interpretations of “to regulate” and “among the several States” led to Congress regulating commerce between two or more states. However, these meanings were expanded in the case of United States v. Darby, giving Congress the power to regulate interstate and now intrastate commerce.

 

Significance

The concepts of the Commerce Clause connect to some ideas of early modern enlightenment philosophers such as Rousseau, as they both emphasized the importance of a strong central government. Personally, I would not change this clause because I think this idea is extremely important. If Congress wasn’t in charge of states’ trade, the free market wouldn’t exist, and America’s economy would worsen.

Declare War Clause: Article 1, Section 8

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When the Constitution was created, Article 1, Section 8 dealt with federalism, the separation of the powers on the national level versus the state level. The common interpretation of this section has changed over time, and one can generalize them into four broad categories in chronological order. At first, this section was perceived as Enumerated Rights Federalism, which meant that the national government was characterized as a government with limited powers. The national government had power as far as the enumeration in Section 8 went, but the states had everything else that was left over. State power was not given by outlining them directly, but instead by outlining the power of the federal government.

The second category was Fundamental Rights Federalism, where after the Civil War and the Civil Rights Act, the federal government was given the power to override state legislation in order to protect the fundamental rights of American citizens. The third category was New Deal Federalism, which ended Enumerated Rights Federalism, because this gave the federal government the power to regulate the states themselves in terms of intrastate commerce.

Now, enter into the modern era, where courts are trying to find a way to draw lines in order to identify where Congress’ powers end and where states’ powers start. Such efforts include preventing Congress from interfering in noneconomic intrastate activity. This is called State Sovereignty Federalism, where courts try to carve out a zone of autonomy for the states. Federalism has been debated for a long time, whether it be the amount of rights delegated to the national government and Congress versus the states. Some are staunch supporters of giving states the vast majority of rights, pointing to how individual states can establish different legislative/economic systems as a form of experimentation to see which sort of system works best.

Some argue that the methods of the court in terms of determining federalism based on the sovereignty of the states is not a method that adequately takes into account the intricacies of the relationship between the federal and state governments. When talking specifically about the Declare War Clause in Section 8, the common interpretation of that also falls into debate. However, the two sides of the debate are a bit different from the federal vs state government debate.

The debate in this clause specifically is between the executive branch and the legislative branch. The wording of the clause states that Congress can “declare war”, make legislation about conquering on land and water, authority to permit privateers to use force upon an enemy, and authority to legalize the seizing of another foreign nation’s property as repayment for debt. Up until the modern era, it has been unclear whether the Declare War Clause permits the executive branch to respond to sudden violent attacks.

In the case of The Bey of Tripoli, when war was declared upon the United States, President Thomas Jefferson sent frigates in response. However, Congress never formally declared a state of war with the Bey of Tripoli, and ever since, it has been unclear to what extent the executive branch can respond with force to a threat without the authorization of Congress, if at all. Judicial courts have also largely left this issue alone, so the executive branch and Congress have simply needed to reach a state of compromise and agreement with each other.