Talk:Commerce Clause

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Contents

[edit] History of commerce

The section on the history of the word commerce appears to be incorrect. The OED has references to the noun commerce meaning trade that go back to the 16th century.

[edit] Numbering of Article 1, Section 8's clauses

The Commerce Clause is Article 1, Section 8, Clause 1. Article 1, Section 8, Clause 3 is the Elastic Clause. Anyone taking the time to check that against the Constitution would notice that. --Lemcconnell wrote without signing

No, the Elastic Clause is Article 1, Section 8, Clause 18. The Commerce Clause is Article 1, Section 8, Clause 3 as the article states. Article 1, Section 8, Clause 1 is the Taxing and Spending Clause. Please sign your posts in the future. --Rajah 01:09, 30 April 2007 (UTC)

I am afraid that the unsigned is correct. The Commerce Clause, beginning with To regulate commerce with... , is a part of Clause 1. Clause 2 begins with To exercise executive Legislation in all cases whatsoever... and Clause 3 begins with To make all Laws which shall be necessary and proper...

Clause 1 contains a lot of congressional powers within it, but each one is not individually organized as "clause". The constitution specifically states only 3 clauses in Sec 8, Art I.

Wiki for Article One of the United States Constitution puts it like this, as well as my Poly Sci text that I am reading right now (Govt. By The People. Magelby, O'Brien, Light, Peltason, Cronin) and several other websites. I am editing it to clause 1. Seary6579 (talk) 01:17, 26 February 2008 (UTC)

[edit] Removal of text

I removed the following paragraph, posted by an anonymous user:
This period, referred to as the Constitutional Revolution of 1937, ushered in a period wherein the Supreme Court largely abdicated its role in limiting the scope of federal power
The exact phrase doesn't appear at all in google and "consitutional revolution" 1937 only appears once (in an extract from the writings of a newly appointed, by W, conservative justice). I hardly think this qualifies as a widely used, NPOV phrase.

You should try spelling it correctly next time. When I was in constitutional law classes in the 80s and 90s, that term certainly was used. One two part course was split into pre-37 and post-37 courses. It was a very pivotal point in the history of American federal constitutional law. My, unnecessary, Google search for "constitutional revolution of 1937" returned "about" 645,000 hits. The Revolution of '37 is quite orthodox and should most certainly be mentioned. I have edited the article to once again reference the Revolution, and have provided at least one citation of a book published well before 'W' was elected (a book I happen to have on my shelf as well). Fingusernames 07:42, 9 September 2007 (UTC)

[edit] Gonzales v. Raich

I think the legal interpretation of this case which I just reversed was wrong. It did not reverse Lopez at all, that case was explicitely distinguished on the basis that marijuana was commercial activity. Nor did it further expand the scope of the power, it was straightforward application of post new-deal precedent. See here for a more sober analysis of the case. Psychobabble 21:50, 16 Jun 2005 (UTC)

You just reversed Gonzales v. Raich? Your influence over the Supreme Court is strong.
Thank you, thank you, I'll be here all week. Tempshill

If I remember right, Raich grows marijuana for herself, and thus the last phrase in that section can be made stronger: it never enters commerce at all, let alone interstate commerce. —Tamfang 19:57, 13 June 2006 (UTC)

[edit] Re: Revisions of 8/1/05

Psychobabble, I've restored my previous change that adds the "Significance" section. You reverted the whole thing on the basis of POV. You have a point, and I've adjusted the language to make it more neutral. But the new material describes why Commerce Clause decisions are still important and controversial, provides more references, and there was at least one factual error in the previous version. If you're still concerned about balance, then let's talk. --Lockley 05:36, 2 August 2005 (UTC)

That was still exceedingly pov. I have removed all of the "significance" section which was duplicated. Discussions of the detail of the interpretation is covered adequately and fairly well elsewhere. What remains is a less pov summary of the significance of the commerce clause. Note that my comments have avoided the "fed gov't power = less individual rights" story which your edit was telling.
Further, many, many people find the court's post-new deal commerce clause decisions as perfectly reasonable (Jeffery Rosen is a particularly strong defender of the minimalist/defer to congress & the people interpretation behind them). Also, people who assert a strongly "originalist" interpretation of the constitution (as you seem to be doing) forget that the constitution has a built in mechanism for interpreting the constitution - the Supreme Court. Their interpretation is valid, by definition. Constitutions, such as the US one, were drafted in a deliberately vague way so they could be interpreted in accordance with changed circumstances and movements in the popular will (eg. the depression and the New Deal).
A final comment on your sources. That quote from landmarkcases.org was flat out wrong - it's really easy to imagine what isn't covered by the clause, you can even find out on this very page by reading under the "Renquist" heading. As a general rule it's best to keep external "commentary" sources to a minimum in the text because they can be cherry picked one way or another to tell a particular story, like that Slate quote, where you could have picked another to tell a different story. Finally, cherry picking "founding father" quotes is once again a favourite of originalists and libertarians, but it ignores that the most conclusive evidence of their intent as a whole group is the final Constitution. The final constitution didn't demand a narrow interpretation of the commerce clause - it left that job to the Supreme Court.
I'm not criticising you at all. I'm just trying to keep this more on an "analysis" and less on an "opinion" level - especially as this is the sort of page where libertarians and libertarian-sympathisers love to tell a story (not that I'm necessarily suggesting you were). Psychobabble 03:13, 5 August 2005 (UTC)
Psychobabble, I'm trying to illuminate the ongoing controversy over the Commerce Clause, not take sides in it. I disagree that my last revision was POV, much less exceedingly POV.
In fact I disagree with nearly every sentence in your last comment, but life is short (smile).
When and if US Supreme Court decisions contain questionable logic, that discussion is (in proper context) valid material for wikipedia. Your comment about the inherent validity of SC decisions suggests that they are beyond criticism. I don't accept that. For US citizens, we have more than an academic interest in the issue.
Twice now you have deleted accurate, pertinent, sourced material because you think its inclusion is 'cherry-picking' and presents an unbalanced view. If you want to bring balance to the article, better to add material than just snip out what you don't agree with. That would be more constructive. --Lockley 20:55, 5 August 2005 (UTC)
I've put this up for peer-review. I haven't read the cases or done a detailed study of US Constitutional law. However, these commerce clause decisions have been mainstream constitutional interpretation for 70 years with strong judicial and academic support for a reason and I don't think it's the proper purpose of this article to come down on one side of the debate. This isn't the case of some odd judicial reasoning in a particular case, it's well established and mainstream legal scholarship. I think the current revision provides a good overview of the facts of the issue with links to external resources and the cases themselves to help people further research the subject. The article does say that the clause has been the subject of controversy, explains that the interpretation is "wide" and provides specific examples of things which have been found to be the subject of interstate commerce. I do not think there is a case for telling a story here (ie. that the decisions are incomprehensible), but I'll leave a final decision on that to others who hopefully know more about the specifics if the peer review is successful.Psychobabble 00:05, 6 August 2005 (UTC)

[edit] Definition of "Commerce"

Apparently, there is an argument that the primary meaning of the word "commerce" in the late eighteenth century -- and the intent of the Commerce Clause -- was not "trade" as today, but more generally "affairs" or "interaction". See e.g. [1]. Here is the most relevant paragraph:

But Amar makes a compelling case on textual and historical grounds that the commerce clause can be read, as many liberals would like, as applying to more than just the economic sphere. He notes that in 1787 the word "commerce" was generally used to refer to all the various forms of interaction in life. (He cites contemporary texts that spoke of the "free and easy commerce of social life" and "our Lord's commerce with his disciples.") More important, he argues, unless "commerce" is read in this expansive fashion, it is not clear how Congress would have the authority to address noneconomic relations with other nations or with Indian tribes, a power that you might reasonably assume the framers wanted Congress to have. Indeed, Amar shows that if you examine the draft language from the constitutional conclave at Philadelphia in 1787, the framers initially granted Congress the power to regulate "affairs" (not just economic affairs) with the Indians. This language became simply "commerce" when the Indian clause was merged into the same provision with "foreign Nations" and "several States" in the final document.

Crust 21:01, 9 November 2005 (UTC)


Could someone comment on this? Otherwise, I can have a stab at making a mention in the article, but I am not an expert and would prefer to leave this to people who are more knowledgeable on this. Crust 14:32, 29 November 2005 (UTC)

[edit] Clean Water Act

There should also be a mention somewhere that this clause is the justification for the Clean Water Act

[edit] 10th amendment.

Under the "significance" heading, the articles states "The Tenth Amendment states that the federal government of the United States has only the powers specifically delegated to it by the Constitution. Other powers are reserved to the states, or to the people." The 10th Amendment does not say "specifically" delegated powers, and this is contentious in constitutional law. The phrase is somewhat biased in the article because I don't believe there has ever been a lasting precedent that voted one way or the other. This goes back to Jefferson/Hamilton and is still debated in the Supreme Court. 131.156.75.125 (talk) 23:40, 18 March 2008 (UTC)