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Thoughts of a Conservative

The Commerce Clause.

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by , 12-16-10 at 05:29 PM (1862 Views)
I'm not going to pretend to write a dissertation on the Commerce Clause. I do want to point out some important information that sheds light on the original meaning of the Commerce Clause and the power it grants congress.

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
The most often debated phrase within this article is; "regulate Commerce". I found the statistics below in a long paper written regarding the original intent of the Commerc Clause. The authors took transcripts of debates and articles written by those in the Continental Congress to determine the proper usage of the words "regualte Commerce." The following is a summation of the usage:


1. Deep-water shipping was the intended meaning 115 times or 83% of all the usage. Of that, Regulation of commerce means taxation 37 times or 27% of all usage. In addition, Retribution to open foreign ports was the inteded use in 39 instances or 28% of all usage. Finally, the Commerce Clause was used regarding deep-water shipping and Restrictions on U.S. ports in 30 instances or 22% or all usage.

2. There was one instance in which the Commerce Clause was used in reference to U.S. Border Land Issues.

3. There were 23 references to Equity between States that account for 17% of all usage. Of that, 13 referred to Interstate Commerce (9%) and 10 to Fairness of one state to another reflected in other clauses.

Sum of reference to programs 139 100%.

http://www.constitution.org/lrev/cjo...ndas_thumb.pdf
This helps us to shed some light upon how the founders came to the wording they came to. With three different ideas of how commerce should be regulated, the founders agreed to include them all by regualting deep water shipping as a trade with foreign nations, land and border disputes as commerce with indian tribes and disputes between states falls under commerce between the several states.

So the end goal was to regulate what could and could not be imported, how trade with indian tribes was handled, and how states would trade within the borders of the US. What is notable is what is missing. At no point does it talk about regulating businesses or individuals. In fact, there is an argument to be made that all three entities mentioned in the Commerce clause are forms of government. From foreign governments, to domestic governments to less traditional governing bodies (tribes).

Thomas Jefferson would later affirm the limited role the Commerce clause should play when he wrote this:

You know my doubts, or rather convictions, about the unconstitutionality of the act for building piers in the Delaware, and the fears that it will lead to a bottomless expense, & to the greatest abuses. There is, however, one intention of which the act is susceptible, & which will bring it within the Constitution; and we ought always to presume that the real intention which is alone consistent with the Constitution. Altho' the power to regulate commerce does not give a power to build piers, wharves, open ports, clear the beds of rivers, dig canals, build warehouses, build manufacturing machines, set up manufactories, cultivate the earth, to all of which the power would go if it went to the first,...

Article 1, Section 8, Clause 3 (Commerce): Thomas Jefferson to Albert Gallatin
He would go on to state that the Constitution only allows for building infrastructure that supports the Navy (and implying infrastructure that is specifically for government use).
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