Thursday, 14 June 2012

A (Very) Brief History of the Commerce Clause

I am giving a webcast tutorial through the National Constitution Center on a tool I helped prepared for ConSource detailing the documentary history of the Commerce Clause (available for download here).  This will occur next Thursday, June 21, or the day the Health Care Cases are decided by the Supreme Court, whichever comes first.

The tie, of course, to the Obamacare cases is that one of the most controversial constitutional questions at stake is whether the individual mandate, or the requirement to purchase health care, is an appropriate use of Congressional power articulated in Article I, Section 8 of the Constitution, "To regulate Commerce...among the several States."  The language quoted is what has become known as the "Interstate Commerce Clause," or, simply, the Commerce Clause.

In preparation for the webcast, I provide here a (very) brief overview of the founding history of the United States as a background for the history of the Commerce Clause.  They turn out to be very nearly one and the same.

The American Revolution began on April 19, 1775 with "the shot heard 'round the world" and with the battles at Lexington and Concord.  Yet hostilities or disagreements between the thirteen colonies and Britain date to the 1760's, and the first Continental Congress met at Carpenter's Hall in Philadelphia on September 5, 1774.  By then, the rebels claimed Britain had the right (and obligation) to regulate commerce "for the purpose of securing the commercial advantages of the whole empire." (Charles Thomson, Sullivan’s Draught (Declaration of Colonial Rights) (Oct. 14, 1774), in 1 Journals of the Continental Congress, 1774-1779 at 68-69 (Worthington C. Ford ed., Library of Congress 1904-1937.)

In 1776, independence was declared and states began writing their own constitutions (but not necessarily in that order - New Hampshire issued its first constitution on January 5, 1776, a full six months before the Declaration of Independence).  Written in 1776 and 1777, the Articles of Confederation did not fully come into operation until 1781, when the thirteenth state,  Maryland, ratified the document.  Until then, national authority was exercised by the Continental Congress without any kind of written constitutional authority.

The Revolution officially ended on September 3, 1783 with the signing of the Treaty of Paris, but British troops did not evacuate New York until November 25, 1783.

During and after the war, the Continental Congress under the Articles was impotent to effectively regulate and protect commerce with foreign nations and between the states.  American merchant ships continued to be attacked by British ships, states issued their own currencies, and states discriminated in charging duties on imports from other states.  In the chaos that ensued, some states resorted to self-help.

Maryland and Virginia joined in a compact to decide the question of trade upon the Potomac (still in force today and litigated as recently as 2003 at the Supreme Court) at what has famously become known as the Mount Vernon Convention.  Thereafter, the Maryland delegates recommended to their legislature that further agreements be made involving not only the initial two states, but Pennsylvania and Delaware.  This lead John Tyler of Virginia, ancestor to President Tyler, to recommend in the Virginia legislature a meeting of all states to discuss commercial interests and regulations.

Thus was born the ill-fated but pivotal Annapolis Convention, wherein only five states had full representation.  In aborting the attempt to convene in September of 1786, Hamilton penned the resolution by those in attendance recommending that each state legislature authorize a general convention to discuss all defects of the Articles that next spring. (Proceedings of Commissioners to Remedy Defects of the Federal Government (Sep. 14, 1786), reprinted in Documents Illustrative of the Formation of the Union of the American States, Pt. 1, at 40-42 (Charles C. Transill, ed., 1927).)

Thus it was that the Constitutional Convention, known then as the Federal Convention, convened in Philadelphia May 15, 1787.  A quorum not being present until May 28, it was on May 29 that two plans of Government were presented to the delegates.  One proposal, not discussed or considered until the Committee of Detail convened July 26 of 1787 (the Pinckney Plan), contains the first version of the Commerce Clause: "The Legislature of the U.S. shall have the exclusive Power...of regulating the Trade of the several States as well with foreign Nations as with each other..." (Excerpts from the Pinckney Plan in William Ewald & Lorianne Updike Toler, Early Drafts of the U.S. Constitution, 85 The Pennsylvania Magazine of History and Biogrphay 309 (July 2011).)

After the Constitution was signed September 17, 1787, containing the text of the Commerce Clause as quoted above, it was debated and discussed in state ratification debates.  Commercial power continued to feature large in the debates--mostly as a widely-accepted reason to adopt the Constitution.  Experience with the affects of poor national powers to regulate commerce was universal.  These debates culminated with ratification by 11 states by 1789 (North Carolina and Rhode Island, the constitutional ludite state, were to ratify later) and elections and installment of a Congress in New York and the inauguration of George Washington on April 30, 1789.

Yet diversions of opinion as to the scope and extent of the Commerce Clause were evident even during ratification.  Alexander Hamilton expressed his sentiments in Federalist 23: "[I]n respect to commerce...Not to confer in each case a degree of power commensurate to the end, would be to violate the most obvious rules of prudence and propriety, and improvidently to trust the great interests of the nation to hands which are disabled from managing them with vigor and success."

Compare Madison's letter to Joseph Cabel in 1828: "For a like reason, I made no reference to the ‘power to regulate commerce among the several States.’ I always foresaw that difficulties might be started in relation to that power which could not be fully explained without recurring to views of it, which, however just, might give birth to specious though unsound objections. Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it. Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged." (Letter from James Madison to Joseph Cabell (Oct. 30, 1828), in 4 Letters and Other Writings of James Madison 14-15 (Philadelphia: J.B. Lippincott & Co., 1865).)

It seems the debate over the extent of powers granted Congress by the Commerce Clause is neither new nor unprecedented.  I wonder whether Hamilton would be in favor of the individual mandate, and Madison would guard against it.  What do you think? 


1 comment:

  1. Very good article, I am doing a paper on the Commerce Clause for my Business law course and I find this Amendment to be very very vague. Obviously they have debated this Amendment since it became part of our constitution. I am sure our founding fathers knew clearly what the purpose was, however over time it has been lost, just like capitalism and self reliance.

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