Locating the Boundaries: The Scope of Congress's Power to Regulate Commerce

Bork, Robert H., Troy, Daniel E., Harvard Journal of Law & Public Policy

The Congress shall have Power ... To regulate Commerce ... among the several States.

--U.S. Constitution, Art. I, [section] 8, cl. 3

I. INTRODUCTION

In the wake of the American Revolution, neither the Continental Congress nor the States acting on their own could respond effectively to the external and internal trade disputes that threatened the new country's prosperity and peace. "It may be doubted," wrote Chief Justice John Marshall, "whether any of the evils proceeding from the feebleness of the federal government, contributed more to that great [constitutional] revolution which introduced the [modern constitutional] system, than the deep and general conviction, that commerce ought to be regulated by Congress." (1) Accordingly, although the federal government was to be limited to exercising only enumerated powers, those powers included the power to regulate commerce, thus remedying this deficiency in the Articles of Confederation.

Regrettably, but perhaps inevitably, "[t]he ink was not yet dry on the Constitution when its revision began." (2) Almost immediately, Congress began pressing beyond specifically enumerated powers granted it in Article I. As a result, today, Americans encounter a national government far more expansive than the Framers and men of their generation could ever have imagined.

Despite this expansion of federal power, however, certain actions and policies of the several States increasingly threaten the free flow of goods and services in interstate commerce; we still face the problem that led to the creation of the federal Constitution. Unsure about the scope of the federal commerce power and, accordingly, the appropriate limits on state interference with interstate commerce,