Publius-Huldah's Blog

Understanding the Constitution

Read the Commerce Clause in the Light cast by the other Parts of our Constitution

By Publius Huldah

The parts of our federal Constitution are so interrelated that it is impossible to understand a single clause therein without considering all of the other provisions of our Constitution.

Article I, §8, clause 3, US Constitution, states:

“The Congress shall have Power … To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”

The original intent of the power to regulate commerce “among the several States” is proved here: Does the “interstate commerce” clause authorize Congress to force us to buy health insurance? That paper proves that the primary purpose of the power is to prohibit the States from imposing tolls and tariffs on articles of import and export – goods & commodities – merchandize – as they are transported through the States for purposes of buying and selling.

But recently, some have asserted that since “foreign Nations”, “the several States”, and “the Indian Tribes” are grouped together in the same clause, it necessarily follows that Congress’ power to “regulate commerce” with each of them is identical. And since Congress has broad powers over foreign commerce, they conclude that Congress has those same broad powers over interstate commerce, and may lawfully, for example, ban the movement of physical goods [such as firearms] across state lines.

So let’s look at that clause in the Light cast by the rest of the Constitution.

Three totally different and separate entities

Three entities are listed in the same clause at Art. I, §8, cl. 3; but we may not properly conclude that the extent and nature of the regulation permitted over the three entities is the same. That’s because each entity has a distinctly different status, and is treated accordingly in the Constitution.

The several States

The States are the sovereign entities which created the federal government when they ratified the Constitution. At Art. I, §10, the States agreed that they would not individually exercise the power to make commercial and trade treaties with foreign Nations; but would exercise that power collectively by delegating to the “creature” of the Constitution – the national government – the power to make such Treaties (Art. II, §2, cl. 2).

The States have a high status: They are The Members of the Federation the States created when they ratified our Constitution. The federal government is merely the “creature” of the constitutional compact the States made with each other when they ratified the Constitution, and is completely subject to its terms.

Foreign Nations

Various provisions are relevant to the power the States delegated to Congress respecting commerce with foreign Nations:

◊ Pursuant to its treaty making power granted at Art. II, §2, cl. 2, the United States may make treaties with foreign nations addressing a great many commercial and trade matters, territorial and fishing waters [our ships won’t fish within X miles of your shoreline, etc.], inspections of products, mutual assistance to merchant ships in distress at sea, assistance to each Party’s sick merchant seamen, etc.

◊ Art. I, §8, cl. 1, grants to Congress the power to levy “Duties, Imposts [tariffs on imports] and Excises”. As they did with the infamous Tariff Act of 1828, Congress has the power to shut down imports from foreign Nations by imposing exorbitant tariffs.

◊ Art. I, §8, cl. 10, grants to Congress power to define Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations. Congress may ban or restrict commerce with foreign nations who fail to rein in their countrymen who are operating pirate ships or violate the Law of Nations.

◊ Art. I, §8, cl. 11, grants to Congress the power to declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water. Congress may restrict or ban commerce with warring foreign nations and their allies, and make rules about seizing their cargo (“bounty”).

◊ Imports and exports are unloaded and loaded at dockyards over which the federal government has (pursuant to Art. I, §8, next to last clause) exclusive legislative authority. Congress may make whatever inspection laws need to be made to protect us from contaminated imports – such as agricultural products infested with bugs or diseases, other contaminated products, etc. 1

So Congress’ power to “regulate commerce with foreign Nations” is exercised by means of Treaties the United States makes with foreign Nations, and by means of Laws made by Congress. In the course of exercising this delegated power, the Legislative and Executive Branches have broad authority to restrict or ban commerce with foreign Nations, and determine its parameters.

Congress has no such powers over the Member States.2

Indian Tribes

In Federalist No. 24 (10th & 11th paras), Hamilton speaks of the necessity of keeping small garrisons on our Western frontier which are necessary to protect “against the ravages and depredations of the Indians”; and that some of these posts (garrisons) “will be keys to the trade with the Indian nations.”

In Federalist No. 42 (11th para), Madison speaks of the unsettled status of Indians and says this has been a question of frequent perplexity and contention in the federal councils.

 

So! It is a clear misconstruction of Art. I, §8, cl. 3 to assert that Congress has the same power to regulate commerce between the Member States that it does to regulate commerce with foreign Nations and the Indian Tribes.

James Madison’s letter of February 13, 1829 to J.C. Cabell

In Madison’s letter of February 13, 1829 to J.C. Cabell, he warns that the claim that the power to regulate commerce with the three entities is identical, is superficially plausible, but actually wrong.

He then says, as to the power to “regulate Commerce among the States”:

“… 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 & preventive provision agst. injustice among the States themselves; rather than as a power to be used for the positive purposes of the General Govt. in which alone however the remedial power could be lodged. And it will be safer to leave the power with this key to it, than to extend to it all the qualities & incidental means belonging to the power over foreign commerce…” [italics added]

*see the Federalist No 42.”

So Madison warns that we better stick with the original understanding; and not interpret the clause to mean that the federal government has the same broad power over interstate commerce that it has over commerce with the foreign Nations and with the Indian Tribes.

Endnotes:

1 The fed gov’t can’t lawfully ban imports of guns and arms because the 2nd Amendment prohibits the fed gov’t from infringing our right to keep and bear arms. Furthermore, a disarmed citizenry is inconsistent with Congress’ obligation, imposed by Art. I, §8, cls 15 & 16, to provide for the arming and training of the Militia of the several States. To see what it was like when we elected to Congress people who knew and obeyed our Constitution, read the Militia Act of 1792. But until We The People learn our Constitution, we will continue to elect ignoramuses to Congress. We cannot be ignorant and free – and you can’t see that a candidate is ignorant unless you are knowledgeable.

2 Domestically, Congress has the power to impose excise taxes on specific articles in commerce. For a discussion of “imposts”, “excises” and the Whiskey Rebellion, see The Plot to Impose a National Sales Tax or Value Added Tax.

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September 10, 2019 - Posted by | Commerce clause, Creature of the Compact, Interstate Commerce Clause | , , , ,

13 Comments »

  1. Having read this and the links to understand the background, the obvious conclusion, which has been demonstrated over the last 100+ years as you just described, is that gov’t never gets smaller, or less intrusive, it always expands, because it needs expansion to justify the over-reach.

    And so many people go along with this, whether from association or lack of knowledge is difficult to assign a percentage to, that it’s possible that there is no other option except to let it fall, as Doug Smith alluded to earlier.

    I don’t advocate this or want it, don’t misunderstand, however my view is not relevant to what the people at the top of the pay scale want, because they will strive for their goals regardless of any other view.

    Like

    Comment by Chris | September 15, 2019 | Reply

    • Let what fall?

      Americans have an extremely destructive belief system – read this valuable short article: https://www.catholicjournal.us/2019/05/25/ideas-that-are-destroying-america/

      Like

      Comment by Publius Huldah | September 15, 2019 | Reply

      • That’s an interesting article, and there is some truth in it, but to expand on my point which you have a question about, in a nutshell, I offer two points:

        1: Americans, and people in the main, are selfish and have a five minute attention span with regard to anything that isn’t in their self interest. There are exceptions, of course, but as a percentage of the population, the exceptions are few.

        2: When viewing history, overall, societies rise and fall, and this has been happening for all of recorded history, and before. To expect that the present will continue into the distant future is not a good position to take given the current economic and demographic conditions that are in America today, the 22.5 Trillion of debt is one example, without considering that this is not sustainable, and change will happen, whether people want it or not. I don’t point that directly at you, because of respect, but at most people who have their face “glued” to their smart phone.

        http://market-ticker.org/akcs-www?singlepost=3471980

        That may not be the most accurate of examples to offer, but it does give some details of how upside down we are.

        Like

        Comment by Chris | September 16, 2019 | Reply

        • Yes, our situation is grave – and we may well be beyond the point of return. I see the American People as the cause of problem. If THEY would man-up, get informed, take responsibility for their own lives and bodies, renounce government handouts, embrace Virtue and Moral Principles, and stop being so gullible, etc., they could turn this around.

          The Bible clearly shows that God sends prophets to warn the people even though He knows the people won’t listen; and God requires us to warn people of dangers we know are ahead of them. I keep thinking of Ezekiel Chapters 2 & 3.

          So that is why we mustn’t spend our remaining years focused on our own personal concerns.

          and besides, who knows: Our words may help keep the Flame alive somewhere.

          Like

          Comment by Publius Huldah | September 16, 2019 | Reply

          • I agree with that, if most of America were to wake up, the local farm stores would be out of stock of pitchforks, and the elected representatives would actually adhere to their Oath. Which is why I choose to educate myself by reading here and on some other blogs, to be up to date on current events, and to share information as needed.

            And if sharing words helps to keep the Flame alive, to help one person improve their knowledge, that is what the goal should be.

            Thank you and have a great week.

            Like

            Comment by Chris | September 16, 2019

          • Thank you, Chris. I keep thinking of that young man who weighs 700 pounds who says he plans to spend the rest of his life eating and playing video games. A metaphor for America.

            Like

            Comment by Publius Huldah | September 16, 2019

  2. The root of a majority of the problems in America was displayed in a segment on Fox News last night. The Commentator had a teacher/professor on that taught incoming freshman Civics. These are those who just graduated from high school. He gave each a civics test on knowledge of the U.S. Constitution. Everyone of them failed. He then gave them a prepared reading assignment. The reading assignment was the Russian Constitution with the United States substituted for the word Russian. Only three in all his classes recognized that it was not the United States Constitution.

    These students are our future policemen/women, sheriffs, congressmen and women, attorneys (my pardon Publius), judges etc. that we will have to rely on to preserve our Republic. Look at what was elected last November.

    God, help us. 2 Chronicles 7:14 comes to mind but we can’t sit on our duffs and expect a miracle.

    Like

    Comment by Doug Smith | September 12, 2019 | Reply

  3. Regarding cl.10 mention of “Law of Nations”, is this a reference to de Vattel?
    Thanks Bob

    Like

    Comment by Robert | September 11, 2019 | Reply

    • I think so, Bob.

      We know, as a pure and proven fact, that our Framers studied Vattel’s Law of Nations and relied on it. REMEMBER! We were doing something unique in the history of man: We threw off a Monarchy and set up – from scratch – a Republic. Vattel provided the concepts our Framers needed to do their work. My first paper on Natural Born Citizen lays out the Evidence I found that our Framers relied heavily on Vattel https://publiushuldah.wordpress.com/2012/07/19/the-constitution-vattel-and-natural-born-citizen-what-our-framers-knew/

      So I think it highly likely that our Framers relied on Vattel to set forth the laws for Relations between Countries. Vattel was really very, very good!

      Liked by 1 person

      Comment by Publius Huldah | September 11, 2019 | Reply

  4. Awesome post! I’m sharing on Facebook.

    Mike Hill 850-232-3909 Sent from my iPhone

    >

    Like

    Comment by Mike Hill | September 10, 2019 | Reply

    • Thank you, Mike! Hope to meet you fairly soon.

      Like

      Comment by Publius Huldah | September 11, 2019 | Reply

  5. Hmmm, interesting. When our elected officials (Federal, State, and local) take an oath to support the Constitutions they had better know the Constitutions. If they don’t then they have committed a Class A Misdemeanor for false swearing. Now, if they know the Constitutions and they act in a manner contrary to the Constitutions then that’s a Class C felony for perjury of oath.

    With that said is there anybody in the United States of America that can fulfill the lawful requirements of a public office?

    Thanks and a hat tip to our educational system in America.

    Oregon statutes require all public schools to teach the Constitutions from 8th grade through 12th grade and all 4 years of college including law school. That’s a minimum 9 years of Constitutional studies and 13 if you graduate law school. This, of course, is not being done much to the degradation of the politics in America.

    As for the Federal gov. regulating commerce among the several states I believe that has been done already: Weigh restriction on vehicles in commerce, engineering requirements for interstate highways and mandatory hour restrictions on drivers with conformance of these standards by the several states via the ‘Interstate Motor Vehicle Compact Act’.

    .

    Like

    Comment by Doug Smith | September 10, 2019 | Reply

    • It’s not that simple. I’m a former criminal defense attorney. Prosecutors may not get “creative” in their application of criminal statutes.

      Liked by 1 person

      Comment by Publius Huldah | September 10, 2019 | Reply


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