Michael Boldin / November 17, 2010

Reclaiming Commerce

For decades, using a tortured definition of “interstate commerce,” Congress has claimed the authority to regulate, control, ban, or mandate virtually everything – from wheat grown on one’s own land for personal consumption, to weed grown in an individual’s own home for the same purpose, to guns manufactured, sold and kept in state boundaries, and everything in between. And, unfortunately, the Supreme Court has largely condoned and even encouraged such reprehensible legislative behavior.

How can they justify this? According to leading Constitutional scholar, Rob Natelson, they make two basic arguments.

The first argument was spun during the New Deal by a University of Chicago law professor. (Too many law professors spend entirely too much time fabricating constitutional theories to promote big government.)

This professor argued that during the Founding Era the word “commerce” meant more than trade. Instead, he contended, “commerce” included all gainful economic activities. Hence Congress has a license to regulate the entire economy.

An even broader version of this theory was published more recently by a Yale law professor. He maintains that “commerce” means any human interaction – so the federal government can regulate almost anything, so long as it doesn’t trample one of the specific guarantees in the Constitution, such as Free Speech.

Both, however, are wrong – flipping the original meaning of the commerce clause on its head.


In 2011, state legislative contacts close to the Tenth Amendment Center tell us to expect that a number of states will attempt to resist this federal overreach. The first? Virginia. Introduced – prefiled, that is – for the 2011 legislative session, is Delegate Mark Cole’s House Bill 1438 (HB1438), which:

Provides that all goods produced or manufactured within the Commonwealth, when such goods are held, retained, or maintained in the Commonwealth, shall not be subject to federal law, federal regulation, or the constitutional power of the United States Congress to regulate interstate commerce.

At first glance, a bill like this might not seem to be out of the ordinary, until one spends a little time thinking about how much of our current unconstitutional federal leviathan the feds have jammed down our throats while claiming “interstate commerce!” every single time.

From Obamacare to Cap and Trade to the Controlled Substances Act – and everything in between – there are literally countless examples of how the federal government claims the right to not only regulate, but control, prohibit, and mandate under its delegated power to regulate commerce – “among the several states.”


If, like any legal document, the words of the Constitution (and its amendments) mean today just what they meant when it was signed, then we must understand the original meaning of words in Article I, Section 8, Clause 3 of the Constitution – the “Interstate Commerce Clause.” It delegates to Congress the power to:

“regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

According to Constitutional scholar Randy Barnett, the original meaning of “commerce” was limited to the “trade and exchange” of goods and transportation for this purpose. The original meaning of “to regulate” generally meant “to make regular” – that is, to specify how an activity may be transacted-when applied to domestic commerce, but when applied to foreign trade also included the power to make “prohibitory regulations.” “Among the several States” meant between persons of one state and another.

According to Constitutional scholar Rob Natelson, the commerce clause gave Congress power to regulate interstate commerce — not any “matters that have significant spillover effects across state lines.” The Constitutional Convention rejected the wording of the Virginia Plan, which arguably would have let the Federal government regulate any activity with interstate spillover. In other words, the Founders made the deliberate decision to leave many activities with spillover effects to the states.

Not included in this power to regulate commerce “across state lines” is the authority to regulate activites that are non-economic or solely INTRAstate, which the language of Virginia’s Instrastate Commerce Act addresses.


Laws of the federal government are Supreme in all matters pursuant to the delegated powers of U.S. Constitution. When D.C. enacts laws outside those powers, state laws trump. And, as Thomas Jefferson would say, when the federal government assumes powers not delegated to it, those acts are “unathoritative, void, and of no force” from the outset.

The principle behind such legislation is nullification, which has a long history in the American tradition. When a state ‘nullifies’ a federal law, it is proclaiming that the law in question is void and inoperative, or ‘non-effective,’ within the boundaries of that state; or, in other words, not a law as far as the state is concerned. Implied in such legislation is that the state apparatus will enforce the act against all violations – in order to protect the liberty of the state’s citizens.

In the Virginia Resolution of 1798, James Madison wrote of the principle of interposition:

That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.

When states resist, interpose, and nullify unconstitutional federal “laws” – this is not rebellion, it’s duty.


A long train of improper judicial precedents and federal usurpations of power under Article 1, Section 8, Clause 3 are not supreme simply due to the fact they are outside the scope of power delegated to the federal government.

By introducing HB1438, Delegate Cole attempts to place Virginia in a position of proper authority while pressing the issue of state supremacy back into the public sphere.

In 1942 no state intervened or challenged the federal claim to regulate non-commercial intrastate activity in Wickard v Filburn. This landmark court decision claimed to give the federal government the power, under the guise of “interstate commerce,” to control the growing of a plant in one’s own backyard – and consuming it at home.

This ruling marked a reversal of precedent set over the course of more than 150 years where the federal courts had ruled against such loose interpretation. The federal government now claims authority – under the commerce clause – to control or ban what you grow and consume at home, to tell you how big your toilet can be, and that you can be fined for not purchasing a health insurance plan. Such powers are not what the founders and ratifiers gave Congress in the Constitution.

With the passage of a bill like HB1438, Virginia would become the first state to reject in one fell swoop the ludicrous and intellectually dishonest constitutional rationale that underpins so much federal activity, and reclaim the rightful authority to regulate commerce within its own borders.

Michael Boldin [[email protected]] is the founder of the Tenth Amendment Center. He was raised in Milwaukee, WI, and currently resides in Los Angeles, CA.

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