Section 8 of the Constitution states: “The Congress shall have the power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Lawyers love laws that are not defined like this Commerce Clause. For example, what is commerce?
In seeking a definition, it is necessary to look at original intent and how the term commerce was defined at the time the Constitution was written. The best most extensive and detailed analysis in my opinion was written by Dr. Randy E. Barnett in 2001 in the University of Chicago Law Review. His article was entitled, “The Original Meaning of the Commerce Clause.”
Barnett used historical evidence, Federalist papers, usage evidence and 18th century dictionary definitions to arrive at what the framers of the Constitution understood to be the meaning of “commerce.” He demonstrated that the term had a narrow definition when the Constitution was written which was why it was not defined. To the constitutional convention delegates, it meant trade and exchange.
This narrow definition is reinforced by what was written in the Federalist Papers. In Federalist 11, Alexander Hamilton explained the core meaning of the commerce clause when he wrote that its purpose was to “advance the trade of each (State) by an interchange of their respective productions….” Barnett further pointed out that in the Federalist Papers the term “commerce” was used 63 times and always referred to trade or exchange, not to the production of items to be traded and definitely not “gainful activity” as some progressive scholars claim. Even the standard dictionary of the time, Samuel Johnson’s Dictionary of the English Language (1785), defined “commerce” exactly the way Hamilton defined it.
So the original intent of the Commerce Clause was to limit Congressional power by having them write laws governing the way people exchanged or traded goods from one state to another and to regulate and restrict the flow of goods to and from other nations (and the Indian tribes) for the purpose of promoting the domestic economy. Over time, the lack of a definition resulted in unintended consequences with the power of the federal government intruding into areas the framers of the Constitution never dreamed of such as ObamaCare.