The Commerce Clause is an enumerated power found in Article 1 section 8 of the Constitution and was a means of separating power from the President, but through the years Congress and the courts have manipulated the intention of the Commerce Clause. The Founding Fathers feared too much power being in the hands of any one branch of the government and were determined to prevent our elected officials from becoming a ruling class. The only flaw with the logic of the Founding Fathers was underestimating how those who replaced them would distort a clause meant to limit government power into one providing Congress with virtually limitless power. A small amount of time and research affirms that the concept of States’ rights, once championed by our Founders, was forgotten no more than 40 years after the signing of the Declaration of Independence.
In 1824 a legal battle made its way up to the Supreme Court and the result was the expansion of the Commerce clause, Congressional power, and a reduction of States’ rights. In Gibbons v. Ogden the legality of a state giving exclusive rights to any one person to operate steam ships on state waters was examined. New York had provided Ogden the exclusive right to navigate state waters; others could use the waterways but were required to pay a licensing fee. As questionable as this practice may be by eliminating a free market and creating barriers to competition, it was widespread and at the time a state issue. In a 6-0 decision, the Supreme Court determined that State laws requiring boat owners to pay an operating fee were invalid because they conflicted with Congressional power to regulate interstate commerce. The Justices also failed to detail the specific regulatory powers of Congress under the Commerce Clause, leaving the ruling open for interpretation by later courts. This set a very dangerous precedent of taking power from States and giving it to the men sitting in Congress.
Again in 1942 the Supreme Court made a ruling that grossly expanded the power of Congressional regulation. In Wickard v. Filburn the Court looked into a farm’s wheat production. The Agriculture Adjustment Act of 1938 set quotas on how much wheat each farmer could grow in order to maintain a stable market price. Wickard was fined for overproducing when he grew extra wheat for personal use and to feed his livestock. When Wickard petitioned against the fine, he received nothing but disappointment. The Supreme Court ruled that even wheat grown that was not directly sold on the market affected commerce, therefore, dragging down the market price. The Justices used a definition of the wheat market the government created in the AAA to make their decision.
The Agricultural Adjustment Act of 1938 (Act), 7 U.S.C.S. §§ 1281 and 1340, includes a definition of "market" and its derivatives, so that as related to wheat, in addition to its conventional meaning, it also means to dispose of "by feeding to poultry or livestock which, or the products of which, are sold, bartered, or exchanged, or to be so disposed of." Hence, marketing quotas not only embrace all that may be sold without penalty but also what may be consumed on the premises.
In determining this definition as sound the Court was obligated to rule against Wickard and thus increased government regulation by declaring it legal for the government to fine a person for growing crops that have either a direct or indirect effect on the market of that good.These rulings set precedents that stripped States’ rights and expanded Congress’ ability to regulate commerce to virtually everything. Congress and the Supreme Court have distorted the foundation of this country by taking power away from “We the People” and giving it to our elected officials, a direct contradiction of what our Founding Fathers had intended. Our Founders enumerated strict, limited powers to Congress in the Constitution, omitting rights reserved for the States. Over time, however, interpretation of the Commerce Clause has removed any limits on Congressional power to regulate.
We’re judicially programmed into believing the words, “to regulate commerce … among the several states” is a broad, magical power belonging to Congress without constitutional limitation in order for the court to sanction such congressional acts as prohibiting individuals from growing wheat for their own personal consumption. This power over interstate commerce is now said to be so broad to include the power to mandate individuals to purchase health insurance because having no health insurance can substantially affect the costs of health insurance throughout the United States.
History of the organic law of this country along with its custom and usage conclusively shows beyond any doubt that the regulation of commerce was nothing more, and nothing less, then the act of imposing a tax on articles of import for the sole purpose of protecting or promoting local manufactures. Thus, the regulation of commerce “among the several states” was inserted for remedial purposes only to prevent any State from claiming the power for themselves to tax imports/exports of neighboring States as some once did.
While the States were effectively prohibited from regulating all commerce but their own, Congress too was effectively prohibited from regulating the domestic intercourse between States under the true and only meaning of the words “to regulate commerce” via Section 9 of Article I (more on this later).
It will become abundantly clear why James Madison referred to the regulation of commerce “among the several states” as a “negative and preventive provision” and not any power Congress may resort to for “positive purposes” (see Madison letter to Joseph C. Cabell).
Finally, it will be pointed how the court has mistakenly confused marine law of nations with that of regulating commerce, which has introduced erroneous assumptions over the extent of the power.
The Power Described
Chief Justice Marshall tells us in the classic and still respected case of Gibbons v. Ogden (1824) that the power to regulate commerce “describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse.”
Marshall obviously is correct in describing the Commerce Clause as commercial intercourse “between” nations and parts of nations because the Constitution speaks only of regulating commerce “with foreign nations” and “among the several States” and not of regulating commerce “within nations” or “within States.” It is too obvious why the regulation of commerce must be “between” and not “within” because Congress has no sovereign jurisdiction over commercial activities either within a foreign nation or within a State.
Remember the Constitution limits Congress to exercising “exclusive legislation in all cases whatsoever” within the District of Columbia, and “all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings.” Congress can also make “rules and regulations respecting the territory or other property belonging to the United States.” None of this creates any new sovereignty within States or foreign nations to allow regulating internal economic activities outside of war.
Some might attempt to argue the method of regulating foreign commerce is not the same as regulating commerce among the States. However, the text of the Commerce Clause reveals no alternating commands to how the regulation of commerce shall be regulated differently between States and nations (or even with Indian tribes). Marshall pointed out this clear fact in Gibbons by observing, “it (regulation of commerce) must carry the same meaning throughout the sentence, and remain a unit, unless there be some plain intelligible cause which alters it.”
Marshall further adds, “[c]ommerce among the States must, of necessity, be commerce with the States.”
Suffice to say, there is no “plain intelligible cause” to alter the power beyond laying duties and impost upon imported articles of trade (which is the only known method and practice of regulating commerce between different sovereigns).
Because the subject of regulation is the commercial intercourse “between” nations and States, it is not terribly important to dwell on what might all come under the singular word “commerce” outside of this regulation because its meaning can only be properly defined in connection with how, and on what, this regulation is exercised.
The Regulating Power Sought Over Commerce with the States
No doubt the reason of little debate and controversies over Congress regulating the commerce of the States during the constitutional convention was due to prior resolutions and debate under the old Articles of Confederation asking for State approval to empower Congress with specific and detailed powers to regulate State and foreign commerce. The first resolution in February of 1781 by John Witherspoon, read, in part:
That it is indispensably necessary that the United States in Congress assembled, should be vested with a right of superintending the commercial regulations of every state, that none may take place that shall be partial or contrary to the common interest; and that they should be vested with the exclusive right of laying duties upon all imported articles, no restriction to be valid, and no such duty to be laid but with the consent of nine states: provided, that all duties and imposts laid by the United States in Congress assembled, shall always be a certain proportion of the value of the article or articles on which the same shall be laid …
Another resolution example is from a committee lead by James Monroe in 1785 asking the States to give Congress the authority “of regulating the trade of the states, as well with foreign nations, as with each other, and of laying such impost and duties, upon imports and exports, as may be necessary for the purpose.” Monroe would later explain in 1822 that:
Commerce between independent powers or communities is universally regulated by duties and imposts. It was so regulated by the States before the adoption of this Constitution, equally in respect to each other and to foreign powers. The goods and vessels (tonnage duties) employed in the trade are the only subjects of regulation. It can act on none other. A power, then, to impose such duties and imposts in regard to foreign nations and to prevent any on the trade between the States was the only power granted.
Madison offered a resolution on November 30, 1785 asking that, “the United States in Congress assembled be authorized to prohibit vessels belonging to any foreign nation from entering any of the ports thereof, or to impose any duties on such vessels and their cargoes which may be judged necessary.” To prevent States from regulating commerce, the resolution called for no State to be at “liberty to impose duties on any goods, wares, or merchandise, imported, by land or by water, from any other state, but may altogether prohibit the importation from any state of any particular species or description of goods, wares, or merchandise, of which the importation is at the same time prohibited from all other places whatsoever.” This resolution leads to the Annapolis Convention of 1786 that in return lead to the convention in Philadelphia in May of 1787.
Another resolution in August of 1786 asking the States to empower Congress with the power to “have the sole and exclusive power of regulating the trade of the States as well with foreign nations as with each other and of laying such prohibitions and such Imposts and duties upon imports and exports as may be Necessary for the purpose…”
These resolutions show a clear, consistent understanding of how commerce is regulated through taxation (duties and imposts on importation) and not municipal law over internal commercial activities. Additionally, these examples illustrate the well-recognized dual purpose of taxation for either raising revenue or regulating commerce.
William Pitt speaking before the House of Commons in 1765 pointed out the dual purpose of taxes, “there is a plain distinction between taxes levied for the purpose of raising a revenue, and duties imposed for the regulation of trade.” Colonial delegate Benjamin Franklin asserted the same thing a year later. James Madison in Federalist No. 56 said, “[t]axation will consist, in a great measure, of duties which will be involved in the regulation of commerce.”
Marshall in Gibbons also recognized the dual purpose of taxes: “It is true that duties may often be, and in fact often are, imposed on tonnage with a view to the regulation of commerce, but they may be also imposed with a view to revenue.”
Imposing a general revenue tax disguised as a regulation of commerce that clearly does not protect or promote local manufactures, could have adverse consequences as Britain once discovered during colonial times (the colonies admitted Britain’s right to tax for the regulation of their foreign commerce but not for general revenue). Because of this dual nature of taxes, States were restrained from laying taxes for any purpose upon imports or exports outside of their own.
The first act of Congress following the convention to regulate commercial intercourse was an act titled, “An act for laying a duty on goods, wares, and merchandizes, imported into the United States,” signed by President Washington on July 4, 1789. Imposing rules of what imported articles are restricted or prohibited via a tax was the only known method of regulating commercial intercourse between independent powers.
Commerce Defined
Because the regulation of commerce is the power of prescribing rules that determine which imported articles are restricted or prohibited through taxation, and from which countries and vessels (navigation), requires first to determine exactly what an “import” is.
Chief Justice Marshall in Gibbons v. Ogden says the “lexicons inform us they (imports) are ‘things imported.’” He continues, “If we appeal to usage for the meaning of the word, we shall receive the same answer. They are the articles themselves which are brought into the country.” Marshall goes on in Brown v. Maryland (1827) to state the articles of import are those “only which are intended for sale or consumption in the country.”
It should be apparent how such things as “labor” or “services” cannot come under the regulation of commerce because, for example, “services” are not property imported. It is also rather absurd to argue regulating the transportation of “passengers” is a regulation of commerce in light of the unmistakable fact the United States no longer recognizes a property in men for purposes of trade. This is what made regulating the foreign slave trade awkward under the Commerce Clause because as Madison put it, human beings were not “property,” and “slaves are not like merchandise, consumed, etc.”
The word “commerce” as employed under the Commerce Clause also does not extend any powers over buying and selling. Thomas Jefferson said, “[t]o make a thing which may be bought and sold is not to prescribe regulations for buying and selling . . . if this were an exercise of the power of regulating commerce, it would be void, as extending as much to the internal commerce of every state, as to its external.” Hamilton responded to this Jefferson conclusion by saying buying and selling “falls more aptly within the province of the local jurisdictions than within that of the general government.”
Consider also that to regulate the value of money, to make laws for bankruptcies, or to “fix the standard of weights and measures” are all-important ingredients of commerce, yet the Constitution specifically enumerates these powers for Congress to exercise. The reason must be that the regulation of commercial intercourse acts only on intercourse “between” nations and States and not “within” where municipal jurisdiction could be exerted.
It is no wonder that the framers are frequently found referring to the regulation of commerce as the “regulation of trade” because this commerce is the regulation of those articles of trade imported with the intent to sale.
Why Nations Regulate their Commercial Intercourse
The object behind taxation for regulating commercial intercourse is not, of course, revenue, but for the protection or encouragement of local manufactures by laying restrictive or prohibiting duties on those imported items that compete with what is domestically manufactured. Moreover, like all taxes, this tax extends no power over the thing taxed other than to restrict or prohibit its introduction (navigation).
Section 1 of the first acts of Congress in regulating commerce in 1789 read, “Whereas it is necessary for the support of government, for the discharge of the debts of the United States, and the encouragement and protection of manufactures, that duties be laid on goods, wares, and merchandizes, imported, etc.” This early law highlights the dual nature of taxation and specifically singles out the purpose of regulating commerce through taxation as “encouragement and protection of manufactures.”
Jefferson wrote in 1821 that the “government of the United States at a very early period, when establishing its tariff on foreign importations, were very much guided in their selection of objects by a desire to encourage manufactures within themselves.”
Madison writing on tariffs in 1828 said the power of regulating commerce “has been understood and used, by all commercial and manufacturing nations, as embracing the object of encouraging manufactures. It is believed that not a single exception can be named.”
A couple of examples of regulating commerce is in order: Congress may seek to encourage American shipbuilding or American navigation in the coasting trade through prescribing high tonnage duties on foreign made vessels while laying little to none on American made ships in order to encourage building or use of American ships. Another example would be how Congress currently encourages the use of American made ethanol for gasoline blending by placing a $0.60 per gallon duty on all imported ethanol. While this is a proper exercise of regulating commerce, mandating by positive law that refineries must produce gasoline blended with ethanol is not because such laws are a police regulation that only the sovereign where such activities occur under can mandate.
During the federal convention in 1787, Madison noted that Col. Mason observed the “particular States might wish to encourage, by impost duties, certain manufactures, for which they enjoyed natural advantages, as Virginia [in] the manufacture of hemp, etc.” Madison responded by saying the “encouragement of manufactures in that mode requires duties, not only on imports directly from foreign countries, but from the other States in the Union, which would revive all the mischiefs experienced from the want of a general government over commerce.”
Why Congress was empowered to Regulate Commerce among the States
Nothing clarifies a constitutional provision better than the purpose for which it was approved and adopted to serve. With that said, a little history is in order.
The single most cause of discontent among the Colonies and States was over how particular States taxed the commerce of other States. Example: Connecticut was taxing the produce of Massachusetts as it navigated down the Connecticut River causing Massachusetts to retaliate by taxing all exports from its harbors belonging to citizens of all New England colonies prior to 1650.
Later New York attempted to break up the trade of Connecticut and New Jersey by imposing heavy duties on every vessel entering from those States. Delaware and New Jersey attempted to attract the foreign trade of Pennsylvania and New York by offering lower import duties. Massachusetts and Rhode Island placed prohibitive duties on imports via British ships while Connecticut admitted such imports free, seeking a monopoly of domestic trade in British products.
James Madison explains the “very material object” of the power to regulate commerce among the States in Federalist No. 42:
A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out, to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter, and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquility.
Madison describes the power as a “constitutional remedy” in this 1832 letter to Professor Davis of the University of Virginia:
The power to regulate commerce among the States was well known and so explained by the advocates of the Constitution when before the people for their consideration, to be as a necessary control on the conduct of some of the importing States toward their non-importing neighbors. A recurrence to the angry legislation produced by it among the parties, some of whom had passed commercial laws (duties and imposts on articles of import) more rigid against others than against foreign nations, will well account for the constitutional remedy.
Alexander Hamilton liken States regulating each other’s trade to the “trammels” of the German empire: “The commerce of the German empire is in continual trammels from the multiplicity of the duties which the several princes and states exact upon the merchandises passing through their territories, by means of which the fine streams and navigable rivers with which Germany is so happily watered are rendered almost useless.”
Framer Edmund Randolph commenting upon the powers of Congress over commerce among the States as President Washington’s AG in 1791, described the power as “little more than to establish the forms of commercial intercourse between the States, and to keep the prohibitions which the constitution imposes on that intercourse undiminished in their operation; that is, to prevent taxes on imports or exports.”
It does not require rocket science to figure out why States would desire an end to such mischief by removing the power of the States to impose such taxes. The accepted way of doing it was to delegate the power exclusively in one authority so no State could claim it still possessed the right, and if any State did attempt to tax other States commerce for its own interests there would be a remedial avenue in voiding such actions.
None of this of course, in any way, extends to concerns over buying or selling across State lines.
Example: A resident citizen of a State purchases a book from a mail order merchant who then ships the book from another State to the purchaser. This activity is not part of any regulation of commerce because the book is not a property belonging to an export of another State with the intent to bring to market for sale but is merely private property having already been sold and is simply being delivered to its new owner.
As we will discover below, the central government could not be trusted with any affirmative power to regulate State-to-State commerce.
Why Congress Lacks Affirmative Powers over Interstate Commerce
With the regulation of commerce being the power to impose a tax upon competing articles of importation for purposes of promoting local manufactures, makes clear how the Constitution limits its exercise between States. Under Article I, Section 9 (Limits on Congress) under the clause that reads, “No Tax or Duty shall be laid on Articles exported from any State.”
This federal prohibition is broad and encompasses every known tax for every known purpose upon any articles exported from any State. An “export” here means nothing more, or nothing less, than an import upon reaching its designation, and like an import, it is only those items transported for the purpose of sale or consumption.
Framer James Wilson made it clear this prohibition extended to the regulation of commerce by pointing out this federal prohibition against taxing State exports would remove “half the regulation of trade,” meaning Congress would effectively be left with only an affirmative power over foreign imports while leaving the regulation of commerce among the States a nullity.
The debate over the clause during the federal convention went along these lines (from Madison’s notes):
Mr. Elseworth: It is best as it stands-The power of regulating trade between the States will protect them agst each other-Should this not be the case, the attempts of one to tax the produce of another passing through its hands, will force a direct exportation and defeat themselves – There are solid reasons agst. Congs taxing exports. 1. it will discourage industry, as taxes on imports discourage luxury. 2. The produce of different States is such as to prevent uniformity in such taxes. there are indeed but a few articles that could be taxed at all; as Tobo. (Tobacco) rice & indigo, and a tax on these alone would be partial & unjust. 3. The taxing of exports would engender incurable jealousies.
Mr. Williamson: Tho’ N- C. (North Carolina) has been taxed by Virga (Virginia) by a duty on 12,000 Hhs of her Tobo. exported thro’ Virga yet he would never agree to this power. Should it take place, it would destroy the last hope of an adoption of the plan.
Mr. Butler was strenuously opposed to a power over exports as unjust and alarming to the staple States.
Mr. Langdon suggested a prohibition on the States from taxing the produce of other States exported from their harbours.
Mr. Dickenson: The power of taxing exports may be inconvenient at present; but it must be of dangerous consequence to prohibit it with respect to all articles and forever. He thought it would be better to except particular articles from the power.
Mr. Sherman: It is best to prohibit the National legislature in all cases. The States will never give up all power over trade. An enumeration of particular articles would be difficult invidious and improper.
Mr. Gerry was strenuously opposed to the power over exports. It might be made use of to compel the States to comply with the will of the Genl Government, and to grant it any new powers which might be demanded-We have given it more power already than we know how will be exercised-it will enable the Genl Govt to oppress the States, as much as Ireland is oppressed by Great Britain.
Mr. Mercer was strenous against giving Congress power to tax exports. Such taxes were impolitic, as encouraging the raising of articles not meant for exportation. The States had now a right where their situation permitted, to tax both the imports and exports of their uncommercial neighbours. It was enough for them to sacrifice one half of it. It had been said the Southern States had most need of naval protection. The reverse was the case. Were it not for promoting the carrying trade of the Northn States, the Southn States could let their trade go into foreign bottoms, where it would not need our protection. Virginia by taxing her tobacco had given an advantage to that of Maryland.
Mr. Butler declared that he never would agree to the power of taxing exports.
As it turned out, framer Roger Sherman was correct; States would never give up all power over commerce to the central government, nor did they.
It has been argued the clause really reads “No Tax or Duty shall be laid on Articles exported [to a foreign nation] from any State.” This argument obviously has serious flaws primarily because such an interpretation is at war with the unambiguous text. It is also at war with the fact Congress avoided taxing State exports from State-to-State to avoid any appearance of taxing this trade.
Example: When Congress passed the controversial Carriage Tax of 1794 for taxing the conveyance of passengers it made very clear that carriages used in “husbandry, or for the transporting or carrying of goods, wares, merchandise, produce or commodities” was exempted. This was to avoid any appearance of Congress attempting to lay a tax on State-to-State exports.
Without the power to lay duties on State exports, there are no means for Congress to encourage or protect manufactures in one State from competition of another State. Congress cannot argue they are merely regulating State imports because one States import is another States export when it comes to commerce among the States. Regulating commerce only works when the intercourse is between foreign nations and where there are no State exports involved.
Justice Story said of section nine: “The obvious object of these provisions is, to prevent any possibility of applying the power to lay taxes, or regulate commerce, injuriously to the interests of any one state, so as to favour or aid another.” Story further remarked the “prohibition extends not only to exports, but to the exporter. Congress can no more rightfully tax the one, than the other.”
Framer Charles Pinckney told the House on February 14, 1820:
I will only mention here, as it is perfectly within my recollection, that the power was given to Congress to regulate the commerce by water between the States, and it being feared, by the Southern, that the Eastern would, whenever they could, do so to the disadvantage of the Southern States, you will find, in the 9th section of the 1st article, Congress are prevented from taxing exports, or giving preference to the ports of one State over another, or obliging vessels bound from one State to clear, enter, or pay duties in another; which restrictions, more clearly than any thing else, prove what the power to regulate commerce among the several States means.
There was an attempt by the Thirty-Ninth Congress to amend the Constitution to strike out the words, “No Tax or Duty shall be laid on Articles exported from any State.” This proposal never made it out of committee.
Since it is abundantly clear to what the text and history of the clause commands, no further discussion is required.
Confusing Marine Power with the Regulation of Commerce
It needs to be noted how the powers over commerce has been erroneously extended through the false assumption of the maritime jurisdiction and the regulation of commerce being one of the same. They are not.
When the States moved from a league of States to one of a Nation for limited purposes of foreign commerce, defense, bankruptcies, piracies on the seas, etc., became by custom of nations a marine power. Per law of nations, all maritime affairs within three miles of the shore are invested with the national power and this jurisdiction extends to anything related to the sea such as salvage, marine insurance, safety regulations, contracts, vessel registration, liens, contracts, trade, pilotage, seamen, etc., etc., etc.
Nobody disputed or questioned the fact the new general government would be empowered over general maritime affairs of the sea because it was widely viewed as the responsibility of all nations to exercise. Framer Edmund Randolph summed it up best when he wrote as Attorney General:
The law of nations, although not specifically adopted by the Constitution, is essentially a part of the law of the land. Its obligation commences and runs with the existence of a nation, subject to modification on some points of indifference.
This jurisdiction extends itself to rivers and canals that are directly connected with the sea, and which may allow navigating for purpose of carrying out trade. Bodies of water where there is no direct connection to the sea or channels unusable for trade do not fall within this jurisdiction.
Furthermore, it is the custom of nations to treat vessels’ as exclusive property under the jurisdiction of the nation whose flag they sail under. Said Webster: “A vessel on the high seas, beyond the distance of a marine league from the shore, is regarded as part of the territory of the nation to which she belongs, and subjected, exclusively to the jurisdiction of that nation.”
This is the authority for Congress to require vessels to carry necessary medications for seamen, or tax seamen wages to provide for hospitalization in case of sickness. None of this has anything to do with the Commerce Clause.
Marshall in Gibbons v. Ogden points out that the marine power of the nation and the regulation of foreign commerce were placed in the same hands: “The provisions of the law respecting native seamen and respecting ownership are as applicable to vessels carrying men as to vessels carrying manufactures, and no reason is perceived why the power over the subject should not be placed in the same hands.”
In United States v. South-Eastern Underwriters (1944), Justice Hugo Black made a rather lame attempt to show the regulation of commerce included the business of insurance by completely misconstruing what Alexander Hamilton wrote in his 1791 opinion on the constitutionality of the Bank of the United States.
In footnote, Black quotes Hamilton’s words, “admit of little if any question” to falsely assert Hamilton was suggesting the “federal power to regulate foreign commerce included ‘the regulation of policies of insurance.’” Justice Black omits the important fact that Hamilton was not directly describing the regulation of foreign commerce but speaking of the nations maritime power for which such insurance over shipping falls.
In his opinion, Hamilton said the regulation of commerce comes under four headings for which the business of insurance does not fall under because Hamilton describes the power as a taxing power with the incidental power to aid the collection (customhouses):
- 1. To prohibit them (nations) or their commodities from our ports (imposing prohibitory duties to restrict their navigation).
- 2. To impose duties on them where none existed before, or to increase existing duties on them.
- 3. To subject them to any species of custom house regulation.
- 4. To grant them any exemptions or privileges which policy may suggest (low or no duties on particular articles or on tonnage).
After highlighting these four proper headings of regulating foreign commerce, Hamilton argues these headings “omits every thing that relates to the citizens, vessels, or commodities, of the United States.” Hamilton then goes into a laundry list of omissions that turns out to be those exact powers exercised by nations under their maritime jurisdiction, example: “The regulation of policies of insurance; of salvage upon goods found at sea; and the disposition of such goods.”
It is obvious from Hamilton’s list of omitted powers he was speaking of those powers exercised over marine affairs since little, if any, had any direct application to dry land. Additionally, these powers had no connection to laying taxes on articles of import which Hamilton himself had acknowledged was the sole mode for regulating commerce.
Maritime jurisdiction would exist without any mention of regulating commerce because it is a custom of all mercantile nations for the national power to manage affairs of the sea. On the other hand, Congress could not regulate commerce without being specifically empowered because the taxing of another countries imports to protect or promote local manufacturers is outside of the general marine affairs of nations.
Conclusion
The power to prescribe the rules that determine which articles of importation shall be restricted or prohibited through the laying of a tax for purpose of protecting or promoting manufactures was the only power approved and adopted. The power being the same over foreign nations as with States removes all doubt the power is a nullity against State acts to tax trade in transit through their jurisdictions and not any positive police power lodged with Congress over internal economic matters.
As a consequence of the power to regulate commerce among the States being void of any affirmative powers for Congress to exercise, and because the power is limited to laying a tax on imports and exports, the power cannot be appealed to in order to make any act outside of taxing foreign imports by Congress necessary and proper.
For the court to deny the custom and usage of the term “to regulate commerce” in order to continue empowering Congress with greater authority over the States to do what is forbidden is repugnant to the Constitution.
Finally, I’ll leave the last word to Justice Story:
“If the constitution is to be only what the administration of the day may wish it to be, and is to assume any and all shapes which may suit the opinions and theories of public men, as they successively direct the public councils, it will be difficult, indeed, to ascertain what its real value is. It cannot possess either certainty, or uniformity, or safety. It will be one thing today, and another thing tomorrow, and again another thing on each succeeding day. The past will furnish no guide, and the future no security.
“It will be the reverse of a law, and entail upon the country the curse of that miserable servitude so much abhorred and denounced, where all is vague and uncertain in the fundamentals of government.”