Early interpretation of the commerce clause - Essay Example

Early Interpretation of the Commerce Clause The commerce clause raises three major questions that can be satisfactorily answered by having a proper interpretation of the clause. These questions revolve around the meaning of “commerce", “among the several States” and “to regulate.” Interpretation here refers to the method of determining the meaning of the words included in the clause. At the time of its creation, the term commerce was used in the clause to mean trade or exchange of goods.

It could also be expansively interpreted as any gainful activity. However, this excluded some gainful activities like manufacturing, agriculture and other methods of production. Barnett (2001) states that these exclusions were made because it was improper to have a congressional power that controlled agriculture with Indian Tribes and manufacturing with foreign nations. Under the constitution convention, it was agreed that the term commerce be used as a substitute for trade and exchange. Contextual analysis of the clause gives a strong support to a conclusion that the phrase “among several states” was initially used to refer to mean between persons of different states.

However, this interpretation would render the term ‘among several states superfluous or excessive. According to Grant and Pushaw (1999), the reason for adding the term among several states ,and foreign nations, was to exclude some forms of commerce from the power of the congress. Therefore, the original interpretation of the term among several states was commerce that occurred between the various US states, and other foreign nations/states. Early interpretations of the phrase ‘to regulate” was to adjust commerce by rule or method.

It was also taken to mean, to make regular. The phrase gave the Congress the power to state how commerce activities were to be conducted among states and between US and foreign nations. However, it excluded the power to prohibit. References Barnett, R. (2001). “The Original Meaning of the Commerce Clause. “ University of Chicago Law Review. (101) pp 1-20. Grant, N. and Pushaw, R. (1999). “Rethinking the Commerce Clause: Applying First Principles to Uphold Federal Commercial Regulations but Preserve State Control over Social Issues, 85 Iowa Law Review 1 p 23-39.