The Supreme Court hearing this week is about this one sentence from our Constitution:
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes
Most people know this as “the Commerce clause.” We usually hear the Commerce Clause as “Congress has the power to regulate Commerce”. I wonder how many people know there’s more to it?
In my view, the debate breaks down as follows.
On one side we have people who incorrectly believe this statement empowers our Congress to force citizens of foreign nations and Indian tribes to buy something.
On the other side are people who correctly understand that this statement empowers our Congress to settle trade disputes between states and with foreign nations and Indian Tribes, on behalf of the U.S.
Some folks may claim to believe that this statement empowers Congress to force only U.S. citizens to buy things.
Such people would need to believe two things that I find far-fetched coming from a group of authors who were concerned about limiting the power of government to protect liberty from government:
- There is a significant difference between the meanings of the words “with” and “among” as used here.
- “States” or “among the several States” actually means “citizens of the United States”.
I find it far more likely that a group trying to preserve individual liberty from government after the learning the lessons of central and arbitrary power firsthand (granted, I admit, not all founding fathers was pure in this regard), actually meant this to be a rather dry power of Congress to settle trade disputes that arose due to laws passed by state legislatures.
For example, this power would be used to settle a dispute if two state legislatures disagreed on how they were to share a common waterway.
No matter the Supreme Court outcome, I’m not convinced that the authors of the Constitution meant this to be an absolute grant of power for Congress to do anything that sounds good that can remotely be tied to a trade between parties.
If that were the case, there wouldn’t be much need for the rest of the Constitution — including Article III, which vests the judicial power of the U.S. in the Supreme Court.