The Commerce Clause

How Three Words Became a Blank Check

When the Framers gathered in Philadelphia in 1787, they faced a crisis. The young nation was fracturing. States were erecting trade barriers against each other, imposing tariffs, and engaging in economic warfare that threatened to tear apart the fragile union before it had truly begun. The solution they crafted was elegant in its simplicity: Congress would have the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

Three words buried in Article I, Section 8, Clause 3—“among the several States”—would become the most contested phrase in American constitutional law. Today, those three words justify federal control over healthcare, education, environmental policy, criminal law, and virtually every aspect of American life. The question is not whether this expansion happened, but whether it represents a legitimate evolution of constitutional meaning or a fundamental betrayal of the document’s original design.

This is not an academic debate. It goes to the heart of who we are as a people: Do we live under a federal government of limited, enumerated powers, as the Constitution explicitly promises? Or have we, through judicial interpretation and political expedience, created a national government with effectively unlimited authority—constrained only by the Bill of Rights and the political process?

The Original Meaning of “To Regulate Commerce”

To understand what the Commerce Clause was supposed to do, we must first understand the problem it was designed to solve. Under the Articles of Confederation, each state was essentially a sovereign nation. States imposed duties on goods passing through their territory. New York taxed firewood from Connecticut and cabbage from New Jersey. Virginia required licenses for ships sailing to other states. The result was predictable: economic chaos and interstate hostility.

The Annapolis Convention of 1786 was called specifically to address these commercial conflicts. When it failed to reach consensus, the delegates called for a broader constitutional convention. Commerce, or more precisely, the lack of free commerce among the states, was the immediate catalyst for the Constitution itself.

James Madison explained the purpose of the Commerce Clause in Federalist No. 42. His words are worth reading carefully, because they reveal what the Framers believed they were creating:

“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.”

Madison’s concern was clear and specific: preventing states from taxing and obstructing the flow of goods across state lines. The Commerce Clause was meant to create a free trade zone among the states, not to grant Congress general regulatory authority over all economic activity.

But what did “commerce” actually mean to the founding generation? This is not a matter of speculation. We have extensive evidence from 18th-century sources. Professor Randy E. Barnett of Georgetown Law conducted an exhaustive review of how the term was used in the founding era. His conclusion, published in the University of Chicago Law Review, is unambiguous:

“To “regulate” meant, in part, ‘to make regular’—that is, to specify the rule by which commerce is to be governed. To regulate commerce ‘among the several states’ was to specify the rules governing the conduct of people who were engaged in trade between one state and another.”¹

Commerce meant trade—the buying, selling, and transportation of goods across state lines. It did not mean manufacturing. It did not mean agriculture. It did not mean every economic activity that might, in some attenuated way, affect interstate markets. Those activities were understood to be local matters, subject to state regulation under the states’ police powers.

This was not a controversial interpretation. For the first 150 years of American history, this understanding was largely unquestioned. Congress could regulate the channels of interstate commerce—roads, rivers, railroads. It could regulate the instrumentalities of interstate commerce—ships, trains, trucks. And it could regulate goods and persons moving in interstate commerce. But it could not regulate purely local activities simply because they might have some indirect effect on interstate markets.

The Framers created a federal government of enumerated powers precisely because they feared consolidated national authority. As Madison wrote in Federalist No. 45, the powers delegated to the federal government were to be “few and defined,” while those remaining with the states would be “numerous and indefinite.” The Commerce Clause was one of those few and defined powers—a specific grant of authority to prevent interstate trade barriers, not a general police power to regulate all economic activity.

This was the original understanding. The question is: what happened to it?

The First Expansion And the Limits it Held

The first major Supreme Court interpretation of the Commerce Clause came in 1824, in the case of Gibbons v. Ogden. The dispute involved a New York state monopoly on steamboat operations that conflicted with a federal license. Chief Justice John Marshall, writing for the Court, had to define the scope of Congress’s commerce power.

Marshall’s opinion is often cited for its broad language. He famously wrote that commerce is “more than traffic; it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches.”² This sounds expansive, and it was—Marshall was making clear that commerce included navigation, not just the physical exchange of goods.

But here is what often gets left out: Marshall also acknowledged clear limits. He distinguished interstate commerce from activities that are “completely internal” and “which do not extend to or affect other States.”³ In other words, even Marshall, who was known for his nationalist sympathies, recognized that the Commerce Clause did not reach purely local activities.

For nearly a century after Gibbons, this distinction held. The Supreme Court consistently ruled that “production,” “manufacturing,” “mining,” and “agriculture” were local activities beyond the reach of federal commerce power. In United States v. E.C. Knight Co. (1895), the Court refused to apply the Sherman Antitrust Act to a sugar refining monopoly that controlled 98% of the nation’s sugar production, reasoning that manufacturing was not commerce. In Hammer v. Dagenhart (1918), the Court struck down a federal law prohibiting the interstate shipment of goods made with child labor, holding that Congress could not use its commerce power to regulate local manufacturing conditions.

These decisions reflected a coherent constitutional principle: the federal government had limited, enumerated powers. If Congress wanted to regulate local manufacturing or agriculture, it needed a constitutional amendment—not a creative reinterpretation of the Commerce Clause. The Tenth Amendment made this explicit:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

This constitutional structure was not an accident. It was a deliberate design choice, rooted in the Framers’ understanding that liberty is best protected by dividing power between state and federal governments. When the federal government is limited to its enumerated powers, and states retain broad police powers over local affairs, citizens have options. If one state’s regulations become oppressive, citizens can move to another state. This competition among states serves as a check on governmental overreach in a way that a consolidated national government cannot provide.

But this structure was about to be dismantled.

The Constitutional Revolution That Wasn’t Supposed to Happen

The Great Depression created enormous political pressure for federal action. President Franklin D. Roosevelt’s New Deal promised sweeping federal programs to address economic collapse. There was just one problem: the Constitution didn’t authorize most of what Roosevelt wanted to do.

Between 1935 and 1936, the Supreme Court struck down key New Deal programs as unconstitutional. The National Industrial Recovery Act, which allowed the federal government to regulate wages, hours, and working conditions in local businesses, was invalidated. The Agricultural Adjustment Act, which regulated farm production, was struck down. The Court was doing exactly what it was supposed to do: enforcing the Constitution’s limits on federal power.

Roosevelt’s response was not to seek a constitutional amendment. Instead, he proposed to pack the Court with additional justices who would vote his way. In February 1937, Roosevelt announced his plan to add up to six new justices to the Supreme Court—one for every justice over the age of 70. The plan was transparently political, and it failed in Congress. But it had already achieved its purpose.

In what became known as the “switch in time that saved nine,” Justice Owen Roberts, who had previously voted to strike down New Deal legislation, suddenly began voting to uphold similar federal programs in the spring of 1937.⁴ This gave the Court a new 5-4 majority in favor of expansive federal power. Whether Roberts changed his vote because of Roosevelt’s threat, or whether the timing was coincidental, remains debated. What is not debatable is the result: the Court abandoned its role as a meaningful check on Congress’s Commerce Clause authority.

The culmination of this transformation came in 1942, in a case that would redefine the meaning of the Commerce Clause: Wickard v. Filburn.

Roscoe Filburn was a small farmer in Ohio. Under the Agricultural Adjustment Act, he was assigned a wheat production quota. Filburn exceeded his quota by growing an additional 239 bushels of wheat—not to sell, but to feed his own livestock and family. The federal government fined him anyway. Filburn argued that his activity was purely local and had no effect on interstate commerce. After all, he wasn’t selling the wheat; he was consuming it on his own farm.

The Supreme Court disagreed—unanimously.⁵ The Court reasoned that even though Filburn’s individual contribution to the wheat supply was trivial, his activity, when aggregated with that of many other farmers similarly situated, could have a substantial effect on the national wheat market. By growing his own wheat, Filburn reduced his demand for wheat on the open market, which could affect prices.

Read that logic carefully, because it is the foundation of modern Commerce Clause doctrine. Congress can regulate purely local, non-commercial activity—activity that never crosses state lines, activity that is not sold, activity that takes place entirely on private property—if that activity, when aggregated with similar activity by others, might have some effect on interstate commerce.

This “aggregation principle” effectively eliminated any meaningful limit on federal power. If Congress can regulate what you grow in your backyard for your own consumption because, in the aggregate, such activities might affect national markets, what can’t Congress regulate? The answer, as subsequent cases would demonstrate, is: virtually nothing.

The Wickard decision did not amend the Constitution. It did not repeal the Tenth Amendment. It simply reinterpreted the Commerce Clause in a way that made enumerated powers meaningless. If the Commerce Clause reaches all economic activity that, in the aggregate, might affect interstate commerce, then the federal government has a general police power—precisely what the Framers said it did not have.

Sixty Years of Silence And the Attempted Revival

For nearly six decades after Wickard, the Supreme Court did not strike down a single federal statute as exceeding Congress’s power under the Commerce Clause. Not one. The Commerce Clause had become, in effect, a blank check for federal legislation.

That changed in 1995, when the Supreme Court decided United States v. Lopez. The case involved the Gun-Free School Zones Act of 1990, which made it a federal crime to possess a firearm within 1,000 feet of a school. The government argued that gun violence near schools could affect interstate commerce by increasing insurance costs, reducing travel, and harming the educational environment, which would lead to a less productive workforce.

Chief Justice William Rehnquist, writing for a 5-4 majority, rejected these arguments as too attenuated.⁶ The Court identified three categories of activity Congress could regulate under the Commerce Clause:

1. The channels of interstate commerce (roads, rivers , airways).

2. The instrumentalities of interstate commerce, or persons or things in interstate commerce.

3. Activities having a substantial relation to interstate commerce.

Possessing a gun near a school, the Court held, did not fit any of these categories. It was not an economic activity. It had no clear connection to interstate commerce. To uphold the law, the Court would have to “pile inference upon inference” in a way that would convert the Commerce Clause into a general federal police power, obliterating the Constitution’s structure of enumerated and limited powers.

Lopez was hailed by federalism advocates as the beginning of a constitutional restoration. The Court seemed to be rediscovering the limits on federal power that had been abandoned during the New Deal. Five years later, in United States v. Morrison (2000), the Court struck down a provision of the Violence Against Women Act, reaffirming that the Commerce Clause did not give Congress a general police power to regulate non-economic, violent criminal conduct.⁷

But the revival was short-lived.

In 2005, the Supreme Court decided Gonzales v. Raich, and the promise of Lopez seemed to evaporate.⁸ The case involved two California women who grew marijuana in their homes for their own medical use, in compliance with California state law. The federal government prosecuted them under the Controlled Substances Act. The women argued that their activity was purely local, non-commercial, and explicitly authorized by state law—exactly the kind of activity that Lopez suggested was beyond federal reach.

The Supreme Court disagreed, 6-3. Relying heavily on Wickard, the Court reasoned that the local, non-commercial cultivation of marijuana was part of a “class of activities” that, in the aggregate, could undercut the federal government’s comprehensive regulation of the interstate market for illegal drugs.

Justice Clarence Thomas wrote a powerful dissent that exposed the implications of the majority’s reasoning:

“If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance to the people of New York that the ‘powers delegated’ to the Federal Government are ‘few and defined.’”⁹

Thomas was right. If the federal government can regulate marijuana that is grown, possessed, and consumed entirely within a single state, in compliance with state law, simply because such activity might undercut a federal regulatory scheme, then there is no activity beyond federal reach. The Commerce Clause has become what the Framers explicitly said it was not: a general grant of police power to the national government.

The Obamacare Battle and the Question of Compelled Commerce

The tension between Lopez and Raich set the stage for the 21st century’s defining Commerce Clause battle: the challenge to the Affordable Care Act’s individual mandate.

The ACA required most Americans to purchase health insurance or pay a penalty. The federal government argued this was a valid exercise of the commerce power because the failure to purchase insurance, in the aggregate, shifted costs to the rest of the healthcare system. The uninsured still received emergency care, and those costs were passed on to insured individuals through higher premiums. Therefore, the decision not to purchase insurance had a substantial effect on interstate commerce.

The argument was logical, given Wickard and Raich. If Congress can regulate wheat you grow for your own consumption, and marijuana you grow for your own medical use, why can’t it regulate your decision not to purchase a product?

In 2012, the Supreme Court answered that question in National Federation of Independent Business v. Sebelius. Chief Justice John Roberts, writing for a 5-4 majority, drew a line. The Commerce Clause, he held, authorizes Congress to regulate existing commercial activity. It does not authorize Congress to compel individuals to enter commerce in the first place.

“The individual mandate...does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.”¹⁰

This was a significant holding. For the first time since the New Deal, the Supreme Court articulated a meaningful limit on the Commerce Clause: Congress cannot force you to buy something simply because your refusal to buy it affects interstate markets.

But the victory was pyrrhic. Roberts upheld the individual mandate anyway, recharacterizing the penalty as a tax and invoking Congress’s taxing power. The practical result was the same: the federal government could compel you to purchase health insurance. Only the constitutional justification had changed.

Still, the Commerce Clause holding in NFIB was significant. A recent analysis in the Harvard Law Review notes that NFIB “weakened three major sources of federal legislative power (the Commerce Clause, Necessary and Proper Clause, and General Welfare Clause)” and represented a continuation of the Roberts Court’s “unique commitment to federalism.”¹¹ Unlike most Courts in American history, which have oscillated between expanding federal power and reining it in (in part due to judicial activism), the Roberts Court has consistently sided with states and against federal overreach.

Whether this trend will continue remains to be seen.

Where We Stand Today And What Comes Next

The Commerce Clause debate is not over. It continues in courtrooms, legislatures, and law schools across the country.

Recent federal legislation continues to test the boundaries of commerce power. The Corporate Transparency Act, enacted in 2021, requires businesses to report beneficial ownership information to the federal government. In late 2025, the Eleventh Circuit upheld the Act against a Commerce Clause challenge, finding that it “facially regulates economic activities with a substantial impact on interstate commerce by prohibiting anonymous business dealings.” The decision demonstrates that courts continue to grant Congress significant deference when regulating activities deemed economic in nature.

Meanwhile, a growing movement of scholars, advocates, and citizens argue for a return to the Commerce Clause’s original meaning. Professor Randy Barnett has proposed a constitutional amendment to explicitly overturn post-New Deal precedents. His proposed amendment would forbid Congress from regulating “any activity that is confined within a single state regardless of its effects outside the state” while granting specific new powers to regulate interstate pollution and acts of war.

Barnett’s proposal is notable for what it acknowledges: judicial interpretation alone has proven insufficient to restore constitutional limits. The precedents of Wickard and Raich are too entrenched. If Americans want to return to a federal government of limited, enumerated powers, they will need to amend the Constitution itself.

The case for such an amendment rests on several arguments:

First, federalism protects liberty. When power is divided between state and federal governments, citizens have options. If one state’s regulations become oppressive, citizens can move to another state. This competition among states serves as a check on governmental overreach. But when the federal government has unlimited regulatory authority, there is nowhere to go.

Second, federalism promotes accountability. When the federal government regulates everything, voters cannot meaningfully hold their representatives accountable. If healthcare, education, environmental policy, criminal law, and economic regulation are all controlled from Washington, how can citizens know which level of government is responsible for which policies? Federalism creates clear lines of accountability.

Third, federalism encourages experimentation. Justice Louis Brandeis famously called the states “laboratories of democracy.” When states have the power to try different approaches to social problems, we can learn what works and what doesn’t. But when the federal government imposes uniform national solutions, we lose the benefits of this experimentation.

Fourth, and most fundamentally, federalism is what the Constitution requires. The Tenth Amendment is not a suggestion. It is a command: powers not delegated to the federal government are reserved to the states and the people. If we no longer believe in limited federal government, we should amend the Constitution to say so. But we should not pretend that the current interpretation of the Commerce Clause is consistent with the document’s original design.

A Choice We Must Make

The story of the Commerce Clause is the story of American constitutional government. It is a story about whether we are governed by a written Constitution with fixed meaning, or by a “living Constitution” that means whatever five justices say it means. It is a story about whether the federal government has limited, enumerated powers, or whether it has effectively unlimited authority constrained only by the Bill of Rights and the political process.

The transformation of the Commerce Clause from a limited grant of authority to prevent interstate trade barriers into a blank check for federal regulation did not happen by accident. It happened through a series of deliberate choices, by presidents who sought to expand federal power, by Congresses that were willing to exceed their constitutional authority, and by Supreme Court justices who abandoned their duty to enforce constitutional limits and act with judicial activism.

But it also happened because We the People allowed it to happen. We accepted the expansion of federal power because we wanted the benefits it promised. We wanted federal programs to address economic hardship, to protect civil rights, to regulate the environment, to ensure healthcare coverage. We wanted these things more than we wanted to preserve the constitutional structure of limited federal government.

The question now is whether we are willing to live with the consequences. A federal government with unlimited regulatory authority is a federal government that can regulate every aspect of your life—what you eat, what you drive, what you say, how you educate your children, how you practice your faith. The only limits are the specific prohibitions in the Bill of Rights and the willingness of the political majority to restrain itself.

The Framers did not trust such a government. They created a Constitution of enumerated powers precisely because they understood that power, once granted, is rarely relinquished voluntarily. They gave us federalism, a division of sovereignty between state and federal governments, as a structural protection for liberty.

We have largely abandoned that structure. The question is whether we will reclaim it—through constitutional amendment, through judicial interpretation, through the political process, through pro se litigation—or whether we will continue down the path toward consolidated national authority.

The evidence is before you. The choice is yours.

1. Barnett, Randy E. (2001) “The Original Meaning of the Commerce Clause,” University of Chicago Law Review: Vol. 68: Iss. 1, Article 2. Available at: https://chicagounbound.uchicago.edu/uclrev/vol68/iss1/2

2. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1. 189,190 (1824)

3. Supra note 2, at p.194, 195

4. Between 1935 and 1936, the Supreme Court invalidated several major New Deal programs, including the National Industrial Recovery Act and the Agricultural Adjustment Act. Frustrated by these decisions, President Roosevelt proposed his infamous “court-packing plan” in February 1937, which would have allowed him to appoint up to six additional justices to the Supreme Court. Though the plan failed in Congress, it created enormous pressure on the Court. In what became known as the “switch in time that saved nine,” Justice Owen Roberts—who had previously voted to strike down New Deal legislation—suddenly began voting to uphold similar federal programs in spring 1937, creating a new 5-4 majority in favor of expansive federal power. Whether Justice Roberts actually changed his vote in response to Roosevelt’s threat, or whether the timing was coincidental, remains debated by historians.

5. Wickard v. Filburn, 317 US 111, (1942)

6. United States v. Lopez, 514 US 549 (1995)

7. United States v. Morrison, 529 U.S. 598 (2000).

8. Gonzales v. Raich, 545 U.S. 1 (2005)

9. Supra note 8 at p. 69

10. Nat. Fedn. of Indep. Business v. Sebelius, 567 US 519, 520 (2012)

11. Harvard Law Review, “Federalism Rebalancing and the Roberts Court: A Departure from Historical Patterns” Vol. 138, No. 5 (March 2025), pp. 1385 Available here: https://harvardlawreview.org/print/vol-138/federalism-rebalancing-and-the-roberts-court-a-departure-from-historical-patterns/