federalist papers commerce clause

Article 1, Section 8, Clause 3 (Commerce)

James Madison, Federalist, no. 42, 283--85

The defect of power in the existing confederacy, to regulate the commerce between its several members, is in the number of those which have been clearly pointed out by experience. To the proofs and remarks which former papers have brought into view on this subject, it may be added, that without this supplemental provision, the great and essential power of regulating foreign commerce, would have been incompleat, and ineffectual. 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. To those who do not view the question through the medium of passion or of interest, the desire of the commercial States to collect in any form, an indirect revenue from their uncommercial neighbours, must appear not less impolitic than it is unfair; since it would stimulate the injured party, by resentment as well as interest, to resort to less convenient channels for their foreign trade. But the mild voice of reason, pleading the cause of an enlarged and permanent interest, is but too often drowned before public bodies as well as individuals, by the clamours of an impatient avidity for immediate and immoderate gain.

The necessity of a superintending authority over the reciprocal trade of confederated States has been illustrated by other examples as well as our own. In Switzerland, where the Union is so very slight, each Canton is obliged to allow to merchandizes, a passage through its jurisdiction into other Cantons, without an augmentation of the tolls. In Germany, it is a law of the empire, that the Princes and States shall not lay tolls or customs on bridges, rivers, or passages, without the consent of the Emperor and Diet; though it appears from a quotation in an antecedent paper, that the practice in this as in many other instances in that confederacy, has not followed the law, and has produced there the mischiefs which have been foreseen here. Among the restraints imposed by the Union of the Netherlands, on its members, one is, that they shall not establish imports disadvantageous to their neighbors, without the general permission.

The regulation of commerce with the Indian tribes is very properly unfettered from two limitations in the articles of confederation, which render the provision obscure and contradictory. The power is there restrained to Indians, not members of any of the States, and is not to violate or infringe the legislative right of any State within its own limits. What description of Indians are to be deemed members of a State, is not yet settled; and has been a question of frequent perplexity and contention in the Foederal Councils. And how the trade with Indians, though not members of a State, yet residing within its legislative jurisdiction, can be regulated by an external authority, without so far intruding on the internal rights of legislation, is absolutely incomprehensible. This is not the only case in which the articles of confederation have inconsiderately endeavored to accomplish impossibilities; to reconcile a partial sovereignty in the Union, with compleat sovereignty in the States; to subvert a mathematical axiom, by taking away a part, and letting the whole remain.

Hamilton, Alexander; Madison, James; and Jay, John. The Federalist . Edited by Jacob E. Cooke. Middletown, Conn.: Wesleyan University Press, 1961.

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The original meaning of the commerce clause.

Randy E. Barnett , Georgetown University Law Center Follow

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Publication date.

The U& Supreme Court, in recent cases; has attempted to define limits on the Congress's power to regulate commerce among the several states. While Justice Thomas has maintained that the original meaning of "commerce" was limited to the "trade and exchange" of goods and transportation for this purpose, some have argued that he is mistaken and that "commerce" originally included any "gainful activity." Having examined every appearance of the word "commerce"in the records of the Constitutional Convention, the ratification debates and the Federalist Papers, Professor Barnett finds no surviving example of this term being used in this broader sense. In every appearance where the context suggests a specific usage, the narrow meaning is always employed. Moreover, originalist evidence of the meaning of "among the several States" and "To regulate"also supports a narrow reading of the Commerce Clause. "Among the several States" meant between persons of one state and another, and "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 regulation." In sum, according to the original meaning of the Commerce Clause, Congress has power to specify rules to govern the manner by which people may exchange or trade goods front one state to another, to remove obstructions to domestic trade erected by state; and to both regulate and restrict the flow of goods to and from other nations (and the Indian tribes) for the purpose of promoting the domestic economy and foreign trade.

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68 U. Chi. L. Rev. 101-147 (2001)

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Barnett, Randy E., "The Original Meaning of the Commerce Clause" (2001). Georgetown Law Faculty Publications and Other Works . 509. https://scholarship.law.georgetown.edu/facpub/509

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Handout A: How Has the Supreme Court Interpreted the Commerce Clause? (Background Essay)

When the Founders wrote the Constitution in 1787, they wanted to fix the economic problems of the 1780s by creating a national government that would be able to collect taxes, regulate foreign trade, and, most important, create a common commercial policy among state governments. In the Federalist Papers, Founders James Madison and Alexander Hamilton argued that the federal government needed these expanded powers in order to turn the United States into a large free-trade zone and impartially balance conflicting state economic interests to protect rights. They also argued for a strong commercial policy to open up markets for foreign trade.

The reach of the Commerce Clause, found in Article I, Section 8 of the Constitution, is an important part of the debate about federal power. It states, “Congress shall have the power… to regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The first Supreme Court case on this part of the Constitution was Gibbons v. Ogden in 1824. The Court held that the Commerce Clause granted Congress “the power to regulate; that is, to prescribe [make] the rule by which commerce is to be governed.” That power extended to interstate commerce, which the court defined as “commerce which concerns more States than one.”

One of the first twentieth century cases to deal with the Commerce Clause was Hammer v. Dagenhart (1918). The Court ruled that the federal government could not outlaw child labor in manufacturing activities that took place in one state and did not cross state lines. The justices might have agreed that it was a worthy goal to protect young children from long work hours, but the Court did not agree that the federal government had the power to legislate on this issue. The Court found that the Tenth Amendment left this power to the states and that Congress could not make rules related to the production of goods where interstate commerce was not involved.

The New Deal

Midway through the twentieth century, Congress started using the Commerce Clause to justify many new types of laws to regulate not just commerce, but also the conditions of economic and social life. The Commerce Clause has been a significant basis for the growth of federal power. The Supreme Court changed its way of thinking in the 1930s under great political stress. President Franklin Delano Roosevelt proposed, and Congress passed, many new programs called the “New Deal.” One program was Social Security, which gave pensions and aid to the disabled and elderly through taxes paid by younger citizens. Other programs regulated the stock market. At first, the Supreme Court ruled in several cases that Congress had no authority to enact such laws. In 1937, President Roosevelt spoke out against the Supreme Court’s decisions on the New Deal legislation. He wanted to be able to add one new justice for every current justice over the age of 70. Most experts view his idea, which was described as “Court Packing,” as a political plan to help his legislation. Some of the political conflict eased when one justice began voting to support the New Deal. Another justice retired and was replaced by a Roosevelt-appointed supporter of the New Deal programs.

The new majority deemed the increased federal power of New Deal legislation to be constitutional. The Supreme Court was going in a new direction. Congress was now able to create laws regulating, banning, and supporting a wide range of activities, and it did. Laws would be upheld as long as the Court was convinced that the regulated activities had a close and important relation to interstate commerce. Federal power grew dramatically for over fifty years.

Lopez , Morrison , and Raich

After 59 years of upholding legislation, in 1995 the Court ruled that Congress had gone too far under the Commerce Clause. In United States v. Lopez (1995), the Court struck down a federal law that created gun-free school zones. Congress had argued that because schools prepare people for the business world, there was a connection between schools and interstate commerce. Therefore, Congress argued, it could regulate guns in school. The Court, however, ruled that the law dealt only with possession of arms and not interstate commerce. The Court appeared to be continuing in this direction when it overturned parts of the Violence Against Women Act in the 2000 case of U.S. v. Morrison . The Court said that the Commerce Clause did not give Congress the power to allow rape victims to sue their attackers in federal court for money damages. In Gonzalez v. Raich (2005), however, the Court did not continue this trend. It ruled that Congress could ban marijuana throughout the nation even when an individual state had laws allowing individuals to grow their own marijuana for medicinal purposes. The Court reasoned that the policy within that single state would affect supply and demand, and therefore Congress’s ban was related to interstate commerce.

The Affordable Care Act

In NFIB v. Sebelius (2012), the Supreme Court upheld much of the 2010 Affordable Care Act (ACA). The case involved a lawsuit by 26 state governments and multiple private plaintiffs, including the National Federation of Independent Business—the nation’s largest small business organization. They challenged the constitutionality of two key parts of the ACA: the part that required most Americans to purchase government approved health insurance by 2014, and a part that forces state governments to greatly expand the Medicaid health care program for the poor, or risk losing all their existing Medicaid funds.

The federal government claimed that the individual mandate was allowed under the Commerce Clause, the Necessary and Proper Clause, and the Tax Clause – which gives Congress the power to impose taxes. In a 5-4 decision, the Supreme Court rejected the first two arguments, but upheld the mandate on the third. In other words, the Court ruled that the Commerce Clause did not give Congress the power to force Americans to buy health insurance, but that the mandate was a constitutional use of its taxing power. Although the text of the ACA refers to a “penalty” and not a “tax,” Chief Justice Roberts reasoned that it was not a real penalty because it was “not a legal command to buy insurance.” It was merely a requirement that violators pay a fine. He also argued that the Court had a duty to interpret the law as a tax, if such an interpretation were at all possible, so as to assume Congress acted in the interest of the people and to avoid ruling that one of its laws was unconstitutional.

Comprehension Questions

What was the purpose of the Commerce Clause?
Why is Gibbons v. Ogden (1824) an important federalism case?
Describe the shift that began around the time of the New Deal in the Supreme Court’s interpretation of the Commerce Clause.
Do you think the Founders thought the Commerce Clause would be used to expand the power of the federal government? Why or why not?
What are the advantages or disadvantages of giving the federal government more power over states and individuals?

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The first amendment, interpretation & debate, the commerce clause, matters of debate, common interpretation, why congress and the courts should obey the original meaning of the commerce clause, a commerce power adequate to its purposes.

by Randy E. Barnett

Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center

by Andrew Koppelman

John Paul Stevens Professor of Law at Northwestern University's Pritzker School of Law

In the thirteen years between the Declaration of Independence in 1776 and the adoption of the Constitution in 1789, the United States was governed primarily by thirteen separate entities. Although the form of each government differed, most tended to elevate the legislature above the executive and judiciary, and made the legislature as responsive to majoritarian sentiments as possible.

State legislatures began enacting laws to relieve debtors (who were numerous) of their debts, which undermined the rights of creditors (who were few) and the credit market. States also erected an assortment of trade barriers to protect their own businesses from competing firms in neighboring states. And, because state legislatures controlled their own commerce, the federal Congress was unable to enter into credible trade agreements with foreign powers to open markets for American goods, in part, by threatening to restrict foreign access to the American market.

The result of all this was a nationwide economic downturn that, rightly or not, was blamed on ruinous policies enacted by democratically-elected legislatures. In 1787, political dissatisfaction with the economic situation led to a convention convened in Philadelphia to remedy this state of affairs. The new Constitution it proposed, addressed debtor relief laws with the Contracts Clause of Article I, Section 10, which barred states from "impairing the obligation of contracts."

To address the problems of interstate trade barriers and the ability to enter into trade agreements, it included the Commerce Clause, which grants Congress the power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Moving the power to regulate interstate commerce to Congress would enable the creation of a free trade zone among the several states; removing the power to regulate international trade from the states would enable the president to negotiate, and Congress to approve, treaties to open foreign markets to American-made goods. The international commerce power also gave Congress the power to abolish the slave trade with other nations, which it did effective on January 1, 1808, the very earliest date allowed by the Constitution.

But, in the words of Chief Justice John Marshall, the "enumeration" of three distinct commerce powers in the Commerce Clause "presupposes something not enumerated, and that something, if we regard the language or the subject of the sentence, must be the exclusively internal commerce of a State." Gibbons v. Ogden (1824) (Marshall, C.J.). So, for example, even when combined with the Necessary and Proper Clause giving Congress power to make all laws which shall be necessary and proper for carrying into execution its enumerated powers, the Commerce Clause did not give Congress power to touch slavery that was allowed by state governments within their borders.

The text of the Commerce Clause raises at least three questions of interpretation: What is the meaning of "commerce"? What is the meaning of "among the several states"? And what is the meaning of "to regulate"? Some have claimed that each of these terms of the Commerce Power had, at the time of the founding, an expansive meaning in common discourse, while others claim the meaning was more limited.

"Commerce" might be limited to the trade, exchange or transportation of people and things, which would exclude, for example, agriculture, manufacturing, and other methods of production; or it might expansively be interpreted to refer to any gainful activity or even to all social interaction.
"To regulate" might be limited to "make regular," which would subject a particular type of commerce to a rule and would exclude, for example, any prohibition on trade as an end in itself; or it might expansively be interpreted to mean "to govern," which would include prohibitions as well as pure regulations.
"[A]mong the several States" might be limited to commerce that takes place between the states (or between people of different states), as opposed to commerce that occurs between persons of the same state; or it might expansively be interpreted to refer to commerce "among the people of the several States," whether such commerce occurs between people in the same state or in different states.

In addition to other pervasive evidence of the public meaning of these terms, the slavery issue helps clarify the original public meaning of these terms at the time of their enactment. "Commerce" meant the activity of selling, trading, exchanging, and transporting goods and people, as distinct from producing the things being moved. "To regulate" meant to make regular, but at least with respect to the international trade, it also included the power to ban the trade in some items, as Congress banned the slave trade. Among the several states meant between one state and others, not within a state, where slavery existed as an economic activity.

From the founding until today, the meaning of "commerce" has not been much changed. Perhaps its only expansion by the Supreme Court came in 1944 when the Court held that commerce included "a business such as insurance," which for a hundred years had been held to be solely a subject of internal state regulation. United States v. South-Eastern Underwriters (1944). Instead, the modern growth of Congress's regulatory powers has been allowed by the courts adopting an expansive reading of the Necessary and Proper Clause to give Congress power over a broad range of intrastate economic activities with a "substantial effect" on interstate commerce, when such regulation is essential to the regulation of interstate commerce (narrowly defined).

As the New Deal Court said in United States v. Darby (1941), the "power of Congress over interstate commerce is not confined to the regulation of commerce among the states." The Court explained that "while manufacture is not of itself interstate commerce, the shipment of manufactured goods interstate is such commerce and the prohibition of such shipment by Congress is indubitably a regulation of the commerce." The power also "extends to those activities intrastate which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate end, the exercise of the granted power of Congress to regulate interstate commerce." As authority for this principle, the Court relied on the Necessary and Proper Clause case of McCulloch v. Maryland (1819).

But in McCulloch , Chief Justice Marshall insisted that "should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government; it would become the painful duty of this tribunal . . . to say that such an act was not the law of the land." In Darby , however, Justice Stone wrote: "Whatever their motive and purpose, regulations of commerce which do not infringe some constitutional prohibition are within the plenary power conferred on Congress by the Commerce Clause." In this way, Stone ruled out Marshall's inquiry into whether Congress was relying on the commerce clause power as pretext for passing laws that aimed to accomplish goals beyond the power of the federal government. Thus, the Court expanded Congress power over interstate commerce in a way that gave it power over the national economy.

In the 1990s, the Rehnquist Court treated these New Deal cases as the high water mark of congressional power. In the cases of U.S. v. Lopez (1995) and U.S. v. Morrison (2000), the Court confined this regulatory authority to intrastate economic activity. In addition, in a concurring opinion in Gonzales v. Raich (2005), Justice Scalia maintained that, under Lopez , "Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce."

Most recently, in the health care case of NFIB v. Sebelius , in 2012, a majority of the justices found that a mandate to compel a person to engage in the economic activity of buying health insurance was beyond the powers of Congress under both the Commerce and Necessary and Proper Clauses. "The individual mandate cannot be upheld as an exercise of Congress' power under the Commerce Clause," Chief Justice Roberts wrote. "That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it." Moreover, "[e]ven if the individual mandate is 'necessary' to the Act's insurance reforms, such an expansion of federal power is not a 'proper' means for making those reforms effective." Instead, Chief Justice Roberts provided the fifth vote to uphold the Affordable Care Act by adopting a "saving construction" that the penalty enforcing the insurance requirement was noncoercive enough to be considered a tax rather than a Commerce Clause regulation.

The dispute over the breadth of the meaning of "commerce" turns, in large part, on the purposes one attributes to the clause, and to the Constitution as a whole, and what one thinks is the relevance of such purposes to the meaning of the text. At Philadelphia in 1787, the Convention resolved that Congress could "legislate in all cases . . . to which the States are separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation." 2 Records of Fed. Convention 21 (Max Farrand ed., 1911); see also 1 Records of Fed. Convention 21 (Resolution VI of the Virginia Plan). This was then translated by the Committee of Detail into the present enumeration of powers in Article I, Section 8, which was accepted as a functional equivalent by the Convention without much discussion. Proponents of an expansive reading claim that the power to regulate commerce should extend to any problem the states cannot separately solve. Those who support a narrower reading observe that the Constitution aims to constrain, as well as to empower, Congress, and the broadest reading of the Commerce power extends well beyond anything the framers imagined. As the dissenters in the health care case observed, "Article I contains no whatever-it-takes-to-solve-a-national-problem power."

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The federalist no. 33, [2 january 1788], the federalist no. 33 1.

[New York, January 2, 1788]

To the People of the State of New-York.

The residue of the argument against the provisions in 2 the constitution, in respect to taxation, is ingrafted upon the following clauses; 3 the last clause of the eighth section of the first article of the plan under consideration, 4 authorises the national legislature “to make all laws which shall be necessary and proper , for carrying into execution the powers by that Constitution vested in the government of the United States, or any department or officer thereof;” and the second clause of the sixth article declares, that “the Constitution and the Laws of the United States made in pursuance thereof , and the treaties made by their authority shall be the supreme law of the land; any thing in the constitution or laws of any State to the contrary notwithstanding.”

These two clauses have been the sources of much virulent invective and petulant declamation against the proposed constitution, they have been held up to the people, in all the exaggerated colours of misrepresentation, as the pernicious engines by which their local governments were to be destroyed and their liberties exterminated—as the hideous monster whose devouring jaws would spare neither sex nor age, nor high nor low, nor sacred nor profane; and yet strange as it may appear, after all this clamour, to those who may not have 5 happened to contemplate them in the same light, it may be affirmed with perfect confidence, that the constitutional operation of the intended government would be precisely the same, if these clauses were entirely obliterated, as if they were repeated in every article. They are only declaratory of a truth, which would have resulted by necessary and unavoidable implication from the very act of constituting a Fœderal Government, and vesting it with certain specified powers. This is so clear a proposition, that moderation itself can scarcely listen to the railings which have been so copiously vented against this part of the plan, without emotions that disturb its equanimity.

What is a power, but the ability or faculty of doing a thing? What is the ability to do a thing but the power of employing the means necessary to its execution? What is a LEGISLATIVE power but a power of making LAWS? What are the means to execute a LEGISLATIVE power but LAWS? What is the power of laying and collecting taxes but a legislative power , or a power of making laws , to lay and collect taxes? What are the proper means of executing such a power but necessary and proper laws?

This simple train of enquiry furnishes us at once with a test by which to judge 6 of the true nature of the clause complained of. It conducts us to this palpable truth, that a power to lay and collect taxes must be a power to pass all laws necessary and proper for the execution of that power; and what does the unfortunate and calumniated provision in question do more than declare the same truth; to wit, that the national legislature to whom the power of laying and collecting taxes had been previously given, might in the execution of that power pass all laws necessary and proper to carry it into effect? I have applied these observations thus particularly to the power of taxation, because it is the immediate subject under consideration, and because it is the most important of the authorities proposed to be conferred upon the Union. But the same process will lead to the same result in relation to all other powers declared in the constitution. And it is expressly to execute these powers, that the sweeping clause, as it has been affectedly called, authorises the national legislature to pass all necessary and proper laws. If there is 7 any thing exceptionable, it must be sought for in the specific powers, upon which this general declaration is predicated. The declaration itself, though it may be chargeable with tautology or redundancy, is at least perfectly harmless.

But SUSPICION may ask why then was it 8 introduced? The answer is, that it could only have been done for greater caution, and to guard against all cavilling refinements in those who might hereafter feel a disposition to curtail and evade the legitimate authorities of the Union. The Convention probably foresaw what 9 it has been a principal aim of these papers to inculcate that the danger which most threatens our political welfare, is, that the State Governments will finally sap the foundations of the Union; and might therefore think it necessary, in so cardinal a point, to leave nothing to construction. Whatever may have been the inducement to it, the wisdom of the precaution is evident from the cry which has been raised against it; as that very cry betrays a disposition to question the great and essential truth which it is manifestly the object of that provision to declare.

But it may be again asked, who is to judge of the necessity and propriety of the laws to be passed for executing the powers of the Union? I answer first that this question arises as well and as fully upon the simple grant of those powers, as upon the declaratory clause: And I answer in the second place, that the national government, like every other, must judge in the first instance of the proper exercise of its powers; and its constituents in the last. If the Fœderal Government should overpass the just bounds of its authority, and make a tyrannical use of its powers; the people whose creature it is must appeal to the standard they have formed, and take such measures to redress the injury done to the constitution, as the exigency may suggest and prudence justify. The propriety of a law in a constitutional light, must always be determined by the nature of the powers upon which it is founded. Suppose by some forced constructions of its authority (which indeed cannot easily be imagined) the Fœderal Legislature should attempt to vary the law of descent in any State; would it not be evident that in making such an attempt it had exceeded its jurisdiction and infringed upon that of the State? Suppose again that upon the pretence of an interference with its revenues, it should undertake to abrogate a land tax imposed by the authority of a State, would it not be equally evident that this was an invasion of that concurrent jurisdiction in respect to this species of tax which its 10 constitution plainly supposes to exist in the State governments? If there ever should be a doubt on this head the credit of it will be intirely due to those reasoners, who, in the imprudent zeal of their animosity to the plan of the Convention, have laboured to invelope it in a cloud calculated to obscure the plainest and simplest truths.

But it is said, that the laws of the Union are to be the supreme law of the land. But 11 what inference can be drawn from this or what would they amount to, if they were not to be supreme? It is evident they would amount to nothing. A LAW by the very meaning of the term includes supremacy. It is a rule which those to whom it is prescribed are bound to observe. This results from every political association. If individuals enter into a state of society the laws of that society must be the supreme regulator of their conduct. If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers entrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed. It would otherwise be a mere treaty, dependent on the good faith of the parties, and not a government; which is only another word for POLITICAL POWER AND SUPREMACY. But it will not follow from this doctrine that acts of the larger society which are not pursuant to its constitutional powers but which are invasions of the residuary authorities of the smaller societies will become the supreme law of the land. These will be merely acts of usurpation and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a Fœderal Government. It will not, I presume, have escaped observation that it expressly confines this supremacy to laws made pursuant to the Constitution; which I mention merely as an instance of caution in the Convention; since that limitation would have been to be understood though it had not been expressed.

Though a law therefore for 12 laying a tax for the use of the United States would be supreme in its nature, and could not legally be opposed or controuled; yet a law for 13 abrogating or preventing the collection of a tax laid by the authority of a State (unless upon imports and exports) would not be the supreme law of the land, but an usurpation of 14 power not granted by the constitution. As far as an improper accumulation of taxes on the same object might tend to render the collection difficult or precarious, this would be a mutual inconvenience not arising from a superiority or defect of power on either side, but from an injudicious exercise of power by one or the other, in a manner equally disadvantageous to both. It is to be hoped and presumed however that mutual interest would dictate a concert in this respect which would avoid any material inconvenience. The inference from the whole is—that the individual States would, under the proposed constitution, retain an independent and uncontroulable authority to raise revenue to any extent of which they may stand in need by every kind of taxation except duties on imports and exports. It will be shewn in the next paper that this CONCURRENT JURISDICTION in the article of taxation was the only admissible substitute for an intire subordination, in respect to this branch of power, of the 15 State authority to that of the Union.

The [New York] Independent Journal: or, the General Advertiser , January 2, 1788. This essay appeared on January 3 in The [New York] Daily Advertiser , on January 4 in New-York Packet , and on January 8 in The New-York Journal, and Daily Patriotic Register . In the newspapers this essay is published as the concluding part of essay 31. See “The Federalist No. 32,” note 1 . In the McLean description begins The Federalist: A Collection of Essays, Written in Favour of the New Constitution, As Agreed upon by the Federal Convention, September 17, 1787. In Two Volumes (New York: Printed and Sold by J. and A. McLean, 1788). description ends edition it was numbered 33.

1 . For background to this document, see “The Federalist. Introductory Note,” October 27, 1787–May 28, 1788 .

2 . “of” substituted for “in” in Hopkins description begins The Federalist On The New Constitution. By Publius. Written in 1788. To Which is Added, Pacificus, on The Proclamation of Neutrality. Written in 1793. Likewise, The Federal Constitution, With All the Amendments. Revised and Corrected. In Two Volumes (New York: Printed and Sold by George F. Hopkins, at Washington’s Head, 1802). description ends .

3 . This sentence appeared in McLean description begins The Federalist: A Collection of Essays, Written in Favour of the New Constitution, As Agreed upon by the Federal Convention, September 17, 1787. In Two Volumes (New York: Printed and Sold by J. and A. McLean, 1788). description ends and Hopkins but not in the newspapers.

4 . “of the plan under consideration” omitted in Hopkins.

5 . “have” was omitted in the newspapers; “have” inserted at this point in McLean and Hopkins.

6 . “by which to judge” omitted in McLean and Hopkins.

7 . “be” substituted for “is” in McLean and Hopkins.

8 . “it” omitted in the newspapers; “it” inserted at this point in McLean and Hopkins.

9 . In the newspapers “that”; “what” was substituted in McLean and Hopkins.

10 . “the” substituted for “its” in Hopkins.

11 . “But” omitted in McLean and Hopkins.

12 . “for” omitted in Hopkins.

13 . “for” omitted in Hopkins.

14 . “a” inserted at this point in Hopkins.

15 . “the” omitted in McLean and Hopkins.

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Federalist Papers

By: History.com Editors

Updated: June 22, 2023 | Original: November 9, 2009

The Federalist Papers are a collection of essays written in the 1780s in support of the proposed U.S. Constitution and the strong federal government it advocated. In October 1787, the first in a series of 85 essays arguing for ratification of the Constitution appeared in the Independent Journal , under the pseudonym “Publius.” Addressed to “The People of the State of New York,” the essays were actually written by the statesmen Alexander Hamilton , James Madison and John Jay . They would be published serially from 1787-88 in several New York newspapers. The first 77 essays, including Madison’s famous Federalist 10 and Federalist 51 , appeared in book form in 1788. Titled The Federalist , it has been hailed as one of the most important political documents in U.S. history.

Articles of Confederation

As the first written constitution of the newly independent United States, the Articles of Confederation nominally granted Congress the power to conduct foreign policy, maintain armed forces and coin money.

But in practice, this centralized government body had little authority over the individual states, including no power to levy taxes or regulate commerce, which hampered the new nation’s ability to pay its outstanding debts from the Revolutionary War .

In May 1787, 55 delegates gathered in Philadelphia to address the deficiencies of the Articles of Confederation and the problems that had arisen from this weakened central government.

A New Constitution

The document that emerged from the Constitutional Convention went far beyond amending the Articles, however. Instead, it established an entirely new system, including a robust central government divided into legislative , executive and judicial branches.

As soon as 39 delegates signed the proposed Constitution in September 1787, the document went to the states for ratification, igniting a furious debate between “Federalists,” who favored ratification of the Constitution as written, and “Antifederalists,” who opposed the Constitution and resisted giving stronger powers to the national government.

The Rise of Publius

In New York, opposition to the Constitution was particularly strong, and ratification was seen as particularly important. Immediately after the document was adopted, Antifederalists began publishing articles in the press criticizing it.

They argued that the document gave Congress excessive powers and that it could lead to the American people losing the hard-won liberties they had fought for and won in the Revolution.

In response to such critiques, the New York lawyer and statesman Alexander Hamilton, who had served as a delegate to the Constitutional Convention, decided to write a comprehensive series of essays defending the Constitution, and promoting its ratification.

Who Wrote the Federalist Papers?

As a collaborator, Hamilton recruited his fellow New Yorker John Jay, who had helped negotiate the treaty ending the war with Britain and served as secretary of foreign affairs under the Articles of Confederation. The two later enlisted the help of James Madison, another delegate to the Constitutional Convention who was in New York at the time serving in the Confederation Congress.

To avoid opening himself and Madison to charges of betraying the Convention’s confidentiality, Hamilton chose the pen name “Publius,” after a general who had helped found the Roman Republic. He wrote the first essay, which appeared in the Independent Journal, on October 27, 1787.

In it, Hamilton argued that the debate facing the nation was not only over ratification of the proposed Constitution, but over the question of “whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.”

After writing the next four essays on the failures of the Articles of Confederation in the realm of foreign affairs, Jay had to drop out of the project due to an attack of rheumatism; he would write only one more essay in the series. Madison wrote a total of 29 essays, while Hamilton wrote a staggering 51.

Federalist Papers Summary

In the Federalist Papers, Hamilton, Jay and Madison argued that the decentralization of power that existed under the Articles of Confederation prevented the new nation from becoming strong enough to compete on the world stage or to quell internal insurrections such as Shays’s Rebellion .

In addition to laying out the many ways in which they believed the Articles of Confederation didn’t work, Hamilton, Jay and Madison used the Federalist essays to explain key provisions of the proposed Constitution, as well as the nature of the republican form of government.

'Federalist 10'

In Federalist 10 , which became the most influential of all the essays, Madison argued against the French political philosopher Montesquieu ’s assertion that true democracy—including Montesquieu’s concept of the separation of powers—was feasible only for small states.

A larger republic, Madison suggested, could more easily balance the competing interests of the different factions or groups (or political parties ) within it. “Extend the sphere, and you take in a greater variety of parties and interests,” he wrote. “[Y]ou make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens[.]”

After emphasizing the central government’s weakness in law enforcement under the Articles of Confederation in Federalist 21-22 , Hamilton dove into a comprehensive defense of the proposed Constitution in the next 14 essays, devoting seven of them to the importance of the government’s power of taxation.

Madison followed with 20 essays devoted to the structure of the new government, including the need for checks and balances between the different powers.

'Federalist 51'

“If men were angels, no government would be necessary,” Madison wrote memorably in Federalist 51 . “If angels were to govern men, neither external nor internal controls on government would be necessary.”

After Jay contributed one more essay on the powers of the Senate , Hamilton concluded the Federalist essays with 21 installments exploring the powers held by the three branches of government—legislative, executive and judiciary.

Impact of the Federalist Papers

Despite their outsized influence in the years to come, and their importance today as touchstones for understanding the Constitution and the founding principles of the U.S. government, the essays published as The Federalist in 1788 saw limited circulation outside of New York at the time they were written. They also fell short of convincing many New York voters, who sent far more Antifederalists than Federalists to the state ratification convention.

Still, in July 1788, a slim majority of New York delegates voted in favor of the Constitution, on the condition that amendments would be added securing certain additional rights. Though Hamilton had opposed this (writing in Federalist 84 that such a bill was unnecessary and could even be harmful) Madison himself would draft the Bill of Rights in 1789, while serving as a representative in the nation’s first Congress.

HISTORY Vault: The American Revolution

Stream American Revolution documentaries and your favorite HISTORY series, commercial-free.

Ron Chernow, Hamilton (Penguin, 2004). Pauline Maier, Ratification: The People Debate the Constitution, 1787-1788 (Simon & Schuster, 2010). “If Men Were Angels: Teaching the Constitution with the Federalist Papers.” Constitutional Rights Foundation . Dan T. Coenen, “Fifteen Curious Facts About the Federalist Papers.” University of Georgia School of Law , April 1, 2007.

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The Federalist Papers, the Commerce Clause, and Federal Tort Reform

Apr 3, 2012 | Lead Articles , Number 2 , Print Edition , Volume 45 | 0 comments

In the modern era, Congress has enacted many federal “tort reform” statutes that supersede contrary state laws, and judicial precedents leave little doubt as to their constitutionality. Even President Ronald Reagan, known for his deference to the states, established a special task force to study the need for tort reform that concluded the federal government should address the modern tort liability crisis in a variety of ways. Still, some question the appropriate constitutional role of Congress in enacting federal tort reform. This Article explores the support for federal tort reform found in the constitutional principles articulated by James Madison, Alexander Hamilton, and other leading founding figures, with particular emphasis on the Federalist Papers. . .

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Vol. 45 No. 2, March 2012

The Federalist Papers, the Commerce Clause, and federal tort reform.

In the modern era, Congress has enacted many federal "tort reform" statutes (2) that supersede contrary state laws, and judicial precedents leave little doubt as to their constitutionality. (3) Even President Ronald Reagan, known for his

deference to the states, (4) established a special task force to study the need for tort reform that concluded the federal government should address the modern tort liability crisis in a variety of ways. (5) Still, some question the appropriate constitutional role of Congress in enacting federal tort reform. (6) This Article explores the support for federal tort reform found in the constitutional principles articulated by James Madison, Alexander Hamilton, and other leading founding figures, with particular emphasis on the Federalist Papers.

THE CALL FOR A CONSTITUTIONAL CONVENTION TO PRODUCE A FEDERAL POWER TO REGULATE "HARMONIOUS" COMMERCIAL INTERCOURSE AMONG THE STATES

When Virginia, led by Madison and four other commissioners, first initiated the movement that led to the drafting of the Constitution, its sole purpose was "to consider how far a uniform system in their commercial regulations may be necessary to their common interest and their permanent harmony." (7) This proposal led to the Annapolis Convention, which in turn called for the Philadelphia Convention of 1787. (8)

At the Philadelphia Convention, before the powers of the federal government were enumerated separately in Article I, Section 8, of the Constitution, a general description of the purpose of those powers was adopted by the Constitutional Convention in what has become known as "Resolution VI." On May 29, 1787, Edmund Randolph, who led the Virginia delegation along with James Madison, "[r]esolved ... that the National Legislature ought to be impowered ... to legislate in all cases ... in which the harmony of the United States may be interrupted by the exercise of individual Legislation." (9) That portion of Randolph's motion was agreed to without debate or dissent. (10) As Madison later made clear, "It can not be supposed that these descriptive phrases [in Resolution VI] were to be left in their indefinite extent to Legislative discretion" and that "[a] selection & definition of the cases embraced by them was to be the task of the Convention" in approving the more specific enumeration of congressional powers in Article I, Section 8, of the Constitution. (11) Still, as we will see, even after the Commerce Clause was drafted as a specifically enumerated congressional power, it was described by Madison in the Federalist Papers as necessary toward the "[m]aintenance of harmony and proper intercourse among the States." (12) And Hamilton wrote in the Federalist Papers, "Whatever practices may have a tendency to disturb the harmony between the States are proper objects of federal superintendence and control." (13)

Further, on August 20, 1787, four days after the Commerce Clause had been adopted by the Constitutional Convention, Gouverneur Morris of Pennsylvania and Charles Pinckney of South Carolina, in proposing the establishment of a Council of State, described the functions of the future Secretaries of "Domestic Affairs" and "Commerce and Finance" as follows:

2. The Secretary of Domestic Affairs who shall be appointed by the President and hold his office during pleasure. It shall be his duty to attend to ... the State of Agriculture and manufactures, the opening of roads and navigations ...; and he shall from time to time recommend such measures and establishments as may tend to promote those objects.

3. The Secretary of Commerce and Finance, who shall be also appointed by the President during pleasure. It shall be his duty to superintend all matters relating to the public finances, to prepare & report plans of revenue and for the regulation of expenditures, and also to recommend such things as may in his Judgment promote the commercial interests of the U.S. (14)

While this amendment was not adopted, Madison recorded no objection to the scope of the powers proposed for the cabinet members, indicating that members of the Convention believed the Commerce Clause would grant the national government power over manufactures and agriculture in the aggregate economic interests of the union.

In sum, the Commerce Clause was intended to allow Congress the authority to help ensure that the nation operated, at least in some measure, as a uniformly well-tuned, harmonious commercial enterprise.

THE IMPORTANCE OF THE FEDERALIST PAPERS TO A PROPER UNDERSTANDING OF THE COMMERCE CLAUSE

While there was little debate over the Commerce Clause during the Constitutional Convention debates, James Madison and Alexander Hamilton, writing under the joint anonymous pseudonym "PUBLIUS," after the famous defender of the Roman Republic, (15) produced an extended and unified written defense of the proposed Constitution that was published in newspapers around the country as the States decided whether or not to ratify the nation's supreme legal document. This comprehensive set of essays became known collectively as the Federalist Papers, and they are considered today to be the most authoritative source of the meaning of the Constitution. James Madison himself called the Federalist Papers "the most authentic exposition" on the Constitution.

In preparation for the opening of classes at the University of Virginia, which Thomas Jefferson founded, Jefferson wrote Madison regarding the teaching of the Constitution to students at the new university in a way that instructed them on the principles of government upon which the Constitution was based. Madison responded to Jefferson, stating, "The 'Federalist' may fairly enough be regarded as the most authentic exposition of the text of the federal Constitution, as understood by the Body which prepared & the Authority which accepted it." (16) The results of that correspondence and collaboration were brought forth in a meeting of the University of Virginia Board of Visitors on March 4, 1825. Jefferson, the author of the Declaration of Independence, and Madison, the father of the Constitution, were members of this Board. The following resolution, adopted by Jefferson, Madison, and the Board on that day, describes what they collectively thought were the authentic sources of American principles of government and of the Constitution, with the Federalist Papers ranking second only to the Declaration of Independence in importance:

A resolution was moved and agreed to in the following words:

Whereas, it is the duty of this Board to the government under which it lives, and especially to that of which this University is the immediate creation, to pay especial attention to the principles of government which shall be inculcated therein, and to provide that none shall be inculcated which are incompatible with those on which the Constitutions of this State, and of the United States were genuinely based, in the common opinion; and for this purpose it may be necessary to point out specially where these principles are to be found legitimately developed:

Resolved, that it is the opinion of this Board ... that on the distinctive principles of the government of our State, and of that of the United States, the best guides are to be found in,

1. The Declaration of Independence, as the fundamental act of union of these States.

2. The book known by the title of--The Federalist, being an authority to which appeal is habitually made by all, and rarely declined or denied by any as evidence of the general opinion of those who framed, and of those who accepted the Constitution of the United States, on questions as to its genuine meaning. (17)

Chief Justice John Marshall had previously written that the Federalist Papers are "of great authority," and that they should be especially deferred to where they address the powers the Constitution grants to the federal government. (18)

In the Federalist Papers, James Madison and Alexander Hamilton described the need for a new federal Constitution that gave Congress the power to regulate "Commerce ... among the Several States." (19) That power, according to the authors of the Federalist Papers, was necessary not only to allow Congress to address abuses committed by the states at the time, but also to address "future contrivances" (20) crafted by states that would similarly act to limit consumers' free access to voluntarily provided goods and services in a robust national economy, which the new Constitution empowered Congress to foster. (21)

More recently, state tort law has been used in ways that limit the flow of goods and services from state to state, and stifle innovation and the free mobility of talent necessary for a strong national economy and citizenry. This article explores the extent to which the arguments presented in the Federalist Papers, (22) many of them too often overlooked, support congressional efforts to enact federal tort reform.

THE FEDERALIST PAPERS' FREE ENTERPRISE ARGUMENTS FOR THE COMMERCE CLAUSE

Madison and Hamilton make clear in the Federalist Papers that one of the most important purposes of the new Constitution was its grant to Congress of the power to regulate commerce such that voluntarily provided goods and services could cross freely from state to state and thereby grow the new nation's economy. Indeed, Madison and Hamilton wrote that if there was one point of consensus among the citizens of the new nation, it was the importance of the development of America's free-enterprise system, and that it was Americans' commercial drive--its "adventurous" commercial "spirit"--that made its people unique. As Hamilton wrote:

The importance of the Union, in a commercial light, is one of those points about which there is least room to entertain a difference of opinion, and which has, in fact, commanded the most general assent of men who have any acquaintance with the subject.... ... [T]he adventurous spirit, which distinguishes the commercial character of...

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The Federalist Papers, the Commerce Clause, and federal tort reform.

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Madison: Father of the Commerce Clause

Exclusive: The Tea Party has been fueled by the idea that key Founders, like James Madison, opposed a strong central government and thus laws like “Obamacare” are unconstitutional. But Madison was the framer who devised the Commerce Clause upon which health-care and other reforms are based, notes Robert Parry.

By Robert Parry

One has to hand it to the American Right. It has invested so heavily in its falsification of U.S. history and in its propaganda machinery that it can convince millions of Americans that up is down. A case in point is the notion that James Madison, “the father of the Constitution,” opposed a strong central government in favor of a system of states’ rights.

The fact that Madison orchestrated American history’s greatest single shift of power into the hands of the central government and, conversely, away from the states, i.e. the U.S. Constitution, is transformed into its opposite by taking a few of Madison’s words out of context and ignoring what he actually did and why.

James Madison in an engraving

So, the Right seizes on Madison’s rhetorical efforts — during the ratification of the Constitution — to play down how radical a transformation he actually engineered, while ignoring his long record of decrying the Articles of Confederation for their weak central government. The Right also doesn’t mention Madison’s proud promotion of the Commerce Clause and other important federal powers.

It is problematic indeed for the Right that Madison, the new Tea Party icon, was the key advocate for the Commerce Clause, which gave the federal government broad powers to regulate interstate commerce and has served as the basis for programs as diverse as Franklin Roosevelt’s New Deal, Dwight Eisenhower’s federal highway system and Barack Obama’s health-care reform.

But the Right’s insistence that such programs are “unconstitutional” and the supposition that Madison would agree with that argument have proved useful in convincing many ill-informed Tea Partiers to dress up in Revolutionary War costumes and channel the Founders’ presumed hostility toward a strong federal government.

Madison’s Commerce Reform

Yet, the Right’s mangling of this history ignores such facts as Madison’s efforts under the Articles of Confederation, which governed the United States from 1777 to 1787, to get the states to relinquish control over national commerce to the federal government. For instance, Madison “sponsored a resolution instructing Virginia congressmen to vote to give the federal government the authority to regulate commerce for twenty-five years,” wrote Chris DeRose in Founding Rivals .

Madison’s resolution won the support of Gen. George Washington, who was one of the fiercest critics of the weak central government under the Articles of Confederation because he had seen how the system of 13 “independent” states had left his soldiers starving and desperate, without supplies and pay, and nearly led to a mutiny by Continental Army officers marching on Congress in Philadelphia.

Washington wrote to Madison, saying “The [commerce] proposition in my opinion is so self evident that I confess I am at a loss to discover wherein lies the weight of the objection to the measure. We are either a united people, or we are not. If the former, let us, in all matters of a general concern act as a nation, which have national objects to promote, and a national character to support. If we are not, let us no longer act a farce by pretending it to be.”

When the Virginia legislature slashed Madison’s proposal for federal control of commerce from 25 years to 13 years, he voted against it as insufficient. His thoughts then turned to a more drastic scheme for consolidating power in the hands of the federal government, a constitutional convention.

On Dec. 9, 1785, Madison wrote to fellow Virginian James Monroe that “It is more probable that the other idea of a convention of commissioners from the states for deliberating on the state of commerce and the degree of power which ought to be lodged in Congress, will be attempted.” [See DeRose’s Founding Rivals .]

When that day arrived in spring 1787 with a convention called in Philadelphia to amend the Articles of Confederation Madison unveiled his radical alternative, not simply some modifications to the Articles but an entirely new system that wiped away the Articles’ language about the “independence” and “sovereignty” of the states.

On May 29, 1787, the first day of substantive debate at the Constitutional Convention, a fellow Virginian, Edmund Randolph, presented Madison’s framework. Madison’s Commerce Clause was there from the start, except that instead of a 25-year grant of federal authority, the central government’s control of interstate commerce would be permanent.

Madison’s convention notes on Randolph’s presentation recount him saying that “there were many advantages, which the U. S. might acquire, which were not attainable under the confederation such as a productive impost [or tax] counteraction of the commercial regulations of other nations pushing of commerce ad libitum &c &c.”

In other words, the Founders at their most “originalist” moment understood the value of the federal government taking action to negate the commercial advantages of other countries and to take steps for “pushing of [American] commerce.” The “ad libitum &c &c” notation suggests that Randolph provided other examples off the top of his head.

Historian Bill Chapman has summarized Randolph’s point in teaching materials as saying “we needed a government that could co-ordinate commerce in order to compete effectively with other nations.”

So, from the very start of the debate on a new Constitution, Madison and other key framers recognized that a legitimate role of the U.S. Congress was to ensure that the nation could match up against other countries economically and could address problems impeding the nation’s economic strength and welfare.

Contention and Compromise

Through the hot summer of 1787, the Convention delegates debated Madison’s plan, amid the give-and-take of compromise, generally reining in some of Madison’s most radical ideas. Contrary to the Right’s current propaganda, Madison actually favored even a more powerful central government than the Convention eventually adopted.

Madison wanted Congress to have veto power over state laws, a provision that was dropped though federal statutes and treaties were made “the supreme law of the land” and thus federal courts could strike down state laws that were deemed in violation.

“Madison wanted the federal assembly to have a veto over the state assemblies,” wrote David Wootton, author of The Essential Federalist and Anti-Federalist Papers . “Vetoes, however, are bad politics, and again and again they had to be abandoned in the course of turning drafts into agreed texts.”

Despite such concessions, the Constitution emerged from the secret meetings in Philadelphia as a stunning assertion of federal power a reality not lost on some influential politicians who favored a continuation of the states’ “independence” and “sovereignty” that were explicitly recognized by the Articles of Confederation, but which disappeared in the Constitution.

Anti-Federalists correctly recognized what had happened and soon rallied strong opposition to the new governing framework. As dissidents from the Pennsylvania delegation wrote: “We dissent because the powers vested in Congress by this constitution, must necessarily annihilate and absorb the legislative, executive, and judicial powers of the several states, and produce from their ruins one consolidated government.” [For details, see Consortiumnews.com’s “ The Right’s Inside-Out Constitution .”]

Tamping Down the Fire

As resistance to Madison’s federal power-grab spread and as states elected delegates to ratifying conventions Madison feared that his constitutional masterwork would go down to defeat or be subjected to a second convention that might remove important federal powers like the Commerce Clause.

So, Madison along with Alexander Hamilton and John Jay began a series of essays, called the Federalist Papers, designed to counter the fierce (though generally accurate) attacks by the Anti-Federalists against the broad assertion of federal power in the Constitution. Madison’s strategy was essentially to insist that the drastic changes contained in the Constitution were not all that drastic, an approach he took both as a delegate to the Virginia ratifying convention and in the Federalist Papers.

To make the case that Madison was an opponent of a strong central government, today’s Right is fond of citing Federalist Paper No. 45, entitled “The Alleged Danger From the Powers of the Union to the State Governments Considered,” in which Madison used the pseudonym Publius.

Madison wrote: “If the new Constitution be examined with accuracy, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS.

“The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained. The powers relating to war and peace, armies and fleets, treaties and finance, with the other more considerable powers, are all vested in the existing Congress by the Articles of Confederation. The proposed change does not enlarge these powers; it only substitutes a more effectual mode of administering them.”

Today’s Right also trumpets Madison’s summation, that “the powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”

What the Right ignores, however, is the context of Madison’s comments as he sought to tamp down the fiery opposition to the Constitution. As a skilled politician, he was engaging in the age-old practice of finessing one’s opponent. After all, if Madison really thought the Articles only needed a few tweaks, why would he have insisted on throwing them out altogether? Plus, replacing toothless powers with ones with real teeth is not some inconsequential change.

Under the Constitution, for instance, printing money became the exclusive purview of the federal government, not a minor change. And, stripping the states of their “sovereignty” and “independence” meant they would not be free to secede from the Union, a very important change that the South would challenge in the Civil War.

Touting the Commerce Clause

But today’s Right leaves out all this history in pursuit of a propaganda theme. The Right also ignores Madison’s comments in Federalist Paper No. 45 about the Commerce Clause, which he acknowledges is a new power for the central government, although one that, he said, “few oppose, and from which no apprehensions are entertained.”

Why the Right ignores this inconvenient truth should be obvious: it destroys the entire argument that Madison was a modern-day Tea Partier ahead of his time. To the Right, the Commerce Clause is the bÃªte noire of the U.S. Constitution, yet here is Madison noting its broad support among Americans who didn’t have to go to a costume shop to buy their tri-corner hats.

To cite Madison as an opponent of an activist federal government, the Right also must ignore Federalist Paper No. 14 in which Madison envisioned major construction projects under the powers granted by the Commerce Clause.

“[T]he union will be daily facilitated by new improvements,” Madison wrote. “Roads will everywhere be shortened, and kept in better order; accommodations for travelers will be multiplied and meliorated; an interior navigation on our eastern side will be opened throughout, or nearly throughout the whole extent of the Thirteen States.

“The communication between the western and Atlantic districts, and between different parts of each, will be rendered more and more easy by those numerous canals with which the beneficence of nature has intersected our country, and which art finds it so little difficult to connect and complete.”

What Madison is demonstrating in that essay is a core reality about the Founders that, by and large, they were practical men seeking to build a strong and unified nation. They also viewed the Constitution as a flexible document designed to meet America’s ever-changing needs, not simply the challenges of the late 18 th Century.

But today’s Right will never accept facts and reason if they go against a desired propaganda theme. After all, the value in the Right having spent billions of dollars in building a vast media infrastructure is that the same bogus arguments can simply be repeated over and over. Indeed, that’s how many right-wing operatives earn a living.

So, the real history gets discredited by calling it “liberal” or by repeating the same out-of-context quote again and again. But serious conservative scholars of the Constitution understand the document’s true purpose even if they sometimes disagree with a specific act of Congress.

Silberman’s Opinion

For instance, it’s worth noting the legal opinion written by conservative U.S. Appeals Court senior judge Laurence Silberman in affirming the constitutionality of the Affordable Care Act, often called “Obamacare.”

On Nov. 8, 2011, Silberman, an appointee of President Ronald Reagan, explained how the law including its most controversial feature, the individual mandate requiring the purchase of health insurance coverage fit with the Commerce Clause and prior legal precedents.

“We look first to the text of the Constitution,” Silberman wrote in his opinion. “Article I, § 8, cl. 3, states: ‘The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.’ (Emphasis added by Silberman).

“At the time the Constitution was fashioned, to ‘regulate’ meant, as it does now, ‘[t]o adjust by rule or method,’ as well as ‘[t]o direct.’ To ‘direct,’ in turn, included ‘[t]o prescribe certain measure[s]; to mark out a certain course,’ and ‘[t]o order; to command.’

“In other words, to ‘regulate’ can mean to require action, and nothing in the definition appears to limit that power only to those already active in relation to an interstate market. Nor was the term ‘commerce’ limited to only existing commerce. There is therefore no textual support for appellants’ argument” that mandating the purchase of health insurance is unconstitutional.

Silberman’s opinion also examined decades of Supreme Court precedents that affirmed the power of Congress to establish regulations over various national markets.

“Today, the only recognized limitations are that (1) Congress may not regulate non- economic behavior based solely on an attenuated link to interstate commerce, and (2) Congress may not regulate intrastate economic behavior if its aggregate impact on interstate commerce is negligible,” Silberman wrote.

Neither limitation applied to the health-care law, Silberman noted, because medical insurance was clearly an economic activity and surely had sizable interstate implications.

As for the claim that people had a constitutional right not to participate in the purchase of health insurance, Silberman was not persuaded. For instance, he cited a Supreme Court precedent that a farmer who wished to raise wheat for his own consumption could still face federal restrictions because his production (and that of other likeminded farmers) could affect the overall supply of wheat and thus undermine federal policy regarding the wheat market.

Congressional Powers

Silberman also recognized Congress’s power to address difficult national problems, like the tens of millions of Americans who lack health insurance but whose eventual use of medical services would inevitably shift billions of dollars in costs onto Americans who must pay higher insurance rates as a result, what courts have described as “substantial effects.”

“The shift to the ‘substantial effects’ doctrine in the early twentieth century recognized the reality that national economic problems are often the result of millions of individuals engaging in behavior that, in isolation, is seemingly unrelated to interstate commerce,” Silberman wrote.

“Its very premise is that the magnitude of any one individual’s actions is irrelevant; the only thing that matters is whether the national problem Congress has identified is one that substantially affects interstate commerce.

“It is irrelevant that an indeterminate number of healthy, uninsured persons will never consume health care, and will therefore never affect the interstate market. Broad regulation is an inherent feature of Congress’s constitutional authority in this area; to regulate complex, nationwide economic problems is to necessarily deal in generalities.

“Congress reasonably determined that as a class , the uninsured create market failures; thus, the lack of harm attributable to any particular uninsured individual, like their lack of overt participation in a market, is of no consequence.”

Silberman wrote that “Congress, which would, in our minds, clearly have the power to impose insurance purchase conditions on persons who appeared at a hospital for medical services as rather useless as that would be is merely imposing the mandate in reasonable anticipation of virtually inevitable future transactions in interstate commerce.”

He noted that since those challenging the health-care law “cannot find real support for their proposed rule in either the text of the Constitution or Supreme Court precedent, they emphasize both the novelty of the [individual] mandate and the lack of a limiting principle,” i.e. some example of when the government could not require citizens to purchase a specific product.

Silberman acknowledged that “the Supreme Court occasionally has treated a particular legislative device’s lack of historical pedigree as evidence that the device may exceed Congress’s constitutional bounds,” but added that “we are obliged and this might well be our most important consideration to presume that acts of Congress are constitutional” absent “a clear showing to the contrary.”

Individual Mandate

Silberman also addressed the core political objection to the health-reform law, its supposed intrusion on individual liberty. He wrote: “That a direct requirement for most Americans to purchase any product or service seems an intrusive exercise of legislative power surely explains why Congress has not used this authority before but that seems to us a political judgment rather than a recognition of constitutional limitations.”

He added: “It certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race, that gravely ill individuals cannot use a substance their doctors described as the only effective palliative for excruciating pain, or that a farmer cannot grow enough wheat to support his own family.

“The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local or seemingly passive their individual origins.”

So, even a very conservative legal scholar examining the Constitution and precedents could not find a convincing argument to overturn “Obamacare” and that is because the Founders intentionally and broadly empowered Congress to address national economic problems through the Commerce Clause.

In his later years as a political leader, Madison like other framers of the Constitution did switch sides in debates over the specific boundaries of appropriate federal power. For instance, Madison joined with Thomas Jefferson in opposing Hamilton’s national bank, but then as Jefferson’s secretary of state, Madison applied an expansive view of national authority in negotiating the Louisiana Purchase from France. Madison also shifted regarding the value of the national bank after his frustrating experiences as president during the War of 1812.

But there should be no serious dispute over Madison’s greatest accomplishment, supplanting the states’ rights framework of the Articles of Confederation with the strong central government of the U.S. Constitution.

And, as much as Madison is regarded as “the father of the Constitution,” he also deserves to be known as “the father of the Commerce Clause.” But don’t expect today’s Right to acknowledge the fact.

[For more on related topics, see Robert Parry’s Lost History, Secrecy & Privilege and Neck Deep , now available in a three-book set for the discount price of only $29. For details, click here .]

Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Neck Deep: The Disastrous Presidency of George W. Bush, was written with two of his sons, Sam and Nat, and can be ordered at neckdeepbook.com . His two previous books, Secrecy & Privilege: The Rise of the Bush Dynasty from Watergate to Iraq and Lost History: Contras, Cocaine, the Press & ‘Project Truth’ are also available there.

6 comments for “ madison: father of the commerce clause ”.

My biggest area of contention would be the conflation the author has between the ideas of a strong government and a government with broadly defined powers. There is no question that Madison and the other framers of the constitution wanted a strong central government. So would most modern day tea-party types. What they also wanted, and what the populace in general wanted, as evidenced by the need for the Federalist Papers, was a strict definition and limitation of that power. The author’s brief nod to the “few and defined” phrase is more of an attempt to dismiss it than give it proper understanding.

It’s a shame that the author didn’t point out that Obama campaigned against mandatory health insurance.

http://www.youtube.com/watch?v=9R-z-fFnuh0

If it was so clear to rank and file (D)emocrats that mandatory purchase of “insurance” from for profit companies was necessary did Obama lie? And why did he insist. until he did not, that the bill he signed “must include a public option”?

And the author also convienently fails to mention the fact that Stooge Baucus had Single Payer Advocates, both Doctors and Nurses **ARRESTED** at a Hearing.

http://www.truthdig.com/report/item/20090513_baucus_raucous_caucus/

If the (R)epublican party did that what what would the author have said? I know that most “Democrats” I know would have called for boycotts and marches on Washington. Does anyone doubt that except for Rahm Emanuel?

Many many people aren’t even aware yet of the fact that they will have to file proof of *acceptable* insurance coverage with their 2015 tax returns and will be penalized if they do not. Smart of the (D)emocrats to set that deadline after the next election, wasn’t it.

Mr. Parry is stuck in the old school of politics where anything and everything the (D)emocrats do is Good, and everything any (R)epublican does is Bad.

it’s sad to see usually respectable people who have contributed so much fall to such juvenile depths to sustain their illusions.

Anyway, Obama and the likes of Pelosi have convinced me that I need to distance myself from “Democrats” as far as possible.

Frankly, the arguments concerning the legislation miss a crucial point. Money. . . . where is the money to run the vast new bureaucracy going to come from? We live at a time when vast cuts and reductions in the national budget should be at the top of the To-Do List. With nearly $120 trillion in unfunded liabilities, we must do some serious thinking and soul searching. Anyone with a basic understanding of economics can readily see the financial mess we are in and what a new bureaucracy would do to our national finances and our largely bankrupt states. As for being without insurance – this I have personally experienced and it was a difficult time. However, I cannot agree with the healthcare legislation.

As for the New Deal, the author neglects to explain that much of the New Deal legislation was struck down over time. However, the Supreme Court in its wisdom, dissected each tenet of New Deal legislation to determine the constitutionality of each provision, which is what the Court will be doing in March with Obamacare. There may be some provisions struck down while others will not. The authors discussion of Madison was wonderful. I always enjoy a good read of Madison and Hamilton

How odd that a conservative jurist would make the case so effectively AGAINST the current broad interpretation of the Commerce Clause, even while upholding it: “He added: â€œIt certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race, that gravely ill individuals cannot use a substance their doctors described as the only effective palliative for excruciating pain, or that a farmer cannot grow enough wheat to support his own family.”

I would agree that hotels and restaurants are engaged in interstate commerce, since they are open to all. The others are examples of the federal government intruding upon a private transaction that specifically does NOT enter interstate commerce. By no accident, the medical one is also a good example of the way the drug laws have become extra-Constitutional.

To be honest, I oppose the Mandate primarily because it’s extraordinarily bad, anti-progressive policy. Its main effect is to reaffirm the insurance companies’ death grip on health care; its secondary effect, since it depends on subsidies, is to funnel vast federal funds into those same, destructive companies. It’s corrupt.

But it also violates the “interstate” part of the Commerce Clause. Although the companies themselves are interstate and even international, they are regulated, until now, by the states, and each policy is written under state law. The common but incorrect comparison with required car insurance confirms that: it, too, is state law.

Granted, there are laws we generally like that depend on the same broad interpretation of the Commerce Clause – e.g., the minimum wage law; though like the anti-discrimination laws, that regulates business, not individuals.

There is no honest question whether requiring everyone to buy a flagrantly faulty product from private businesses, especially without effectively regulating that product (for instance, as to price) is an offensive intrusion on individual liberty – Silberman, for one, acknowledges that. Whether it is “Constitutional” under present, broad interpretations is a very good question that we’ll have to leave to a reactionary Supreme Court; but it obviously does not reflect the intent of the Commerce Clause, and the examples given (interstate highways and canals) only confirm that.

Comments are closed.

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COMMENTS

Article 1, Section 8, Clause 3 (Commerce): James Madison, Federalist
Article 1, Section 8, Clause 3 (Commerce) Document 9. James Madison, Federalist, no. 42, 283--85. 22 Jan. 1788. ... To the proofs and remarks which former papers have brought into view on this subject, it may be added, that without this supplemental provision, the great and essential power of regulating foreign commerce, would have been ...
Historical Background on Dormant Commerce Clause
In the Federalist Papers, Alexander Hamilton and James Madison discussed the benefits of a free national market, such as improving the circulation of commodities for export to foreign markets, increasing the diversity and scope of production, facilitating aid between the states, and providing for more advantageous terms of foreign trade. 5 Footnote
The Federalist Number 45, [26 January] 1788
The Federalist Number 45. Having shewn that no one of the powers transferred to the federal government is unnecessary or improper, the next question to be considered is whether the whole mass of them will be dangerous to the portion of authority left in the several states. The adversaries to the plan of the convention instead of considering in ...
The Federalist Society
A. Views of "Commerce": Traditional and "Mega". The Constitution grants Congress power to "regulate Commerce with foreign Nations, among the several States, and with the Indian Tribes.". [2] For the Constitution's first 150 years, it generally was accepted that "Commerce" referred to mercantile trade and its many incidents.
The Original Meaning of the Commerce Clause
The OriginalMeaning of the Commerce Clause. production. If the public at the time of ratification understood the term "commerce" in the Constitution to include trade, exchange, and navigation, then that is its original meaning.'. On the other hand, though enactment of "navigation laws" was.
PDF The Elastic Commerce Clause: A Political Theory of American Federalism
The Federalist Papers 464 (Mentor, 1961), and articulated by the Supreme Court in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). 9. See, for example, Gerald Gunther, Constitutional Law chs. 2-5 (Foundation, 12th ed. ... Commerce Clause decisions have hardly shown a single-minded ex-pansion of national power at the expense of state power. The ...
Commerce Clause
The Commerce Clause describes an enumerated power listed in the United States Constitution (Article I, Section 8, Clause 3).The clause states that the United States Congress shall have power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes". Courts and commentators have tended to discuss each of these three areas of commerce as a separate ...
"The Original Meaning of the Commerce Clause" by Randy E. Barnett
Having examined every appearance of the word "commerce"in the records of the Constitutional Convention, the ratification debates and the Federalist Papers, Professor Barnett finds no surviving example of this term being used in this broader sense. In every appearance where the context suggests a specific usage, the narrow meaning is always ...
Federalist No. 11
Federalist No. 11 is an essay by Alexander Hamilton, the eleventh of The Federalist Papers. It was first published in The Independent Journal (New York) on November 23, 1787 under the pseudonym Publius, the name under which all The Federalist papers were published. It is titled "The Utility of the Union in Respect to Commercial Relations and a Navy".
Handout A: How Has the Supreme Court Interpreted the Commerce Clause
In the Federalist Papers, Founders James Madison and Alexander Hamilton argued that the federal government needed these expanded powers in order to turn the United States into a large free-trade zone and impartially balance conflicting state economic interests to protect rights. ... The Commerce Clause has been a significant basis for the ...
Federalist Papers: Primary Documents in American History
This webpage provides the full text of the Federalist Papers, a collection of 85 essays that shaped the U.S. Constitution and the debate over ratification. You can read the original arguments of Hamilton, Jay, and Madison on topics such as federalism, separation of powers, and republicanism. The webpage also includes links to other primary documents and resources on American history.
Interpretation: The Commerce Clause
Sebelius, in 2012, a majority of the justices found that a mandate to compel a person to engage in the economic activity of buying health insurance was beyond the powers of Congress under both the Commerce and Necessary and Proper Clauses. "The individual mandate cannot be upheld as an exercise of Congress' power under the Commerce Clause ...
The Federalist No. 33, [2 January 1788]
The Federalist No. 33 1. [New York, January 2, 1788] To the People of the State of New-York. The residue of the argument against the provisions in 2 the constitution, in respect to taxation, is ingrafted upon the following clauses; 3 the last clause of the eighth section of the first article of the plan under consideration, 4 authorises the ...
Federalist Papers: Summary, Authors & Impact
The Federalist Papers are a collection of essays written in the 1780s in support of the proposed U.S. Constitution and the strong federal government it advocated. In October 1787, the first in a ...
The Federalist Papers, the Commerce Clause, and Federal Tort Reform
The Federalist Papers, the Commerce Clause, and Federal Tort Reform. Apr 3, 2012 | Lead Articles, Number 2, Print Edition, Volume 45 | 0 comments. In the modern era, Congress has enacted many federal "tort reform" statutes that supersede contrary state laws, and judicial precedents leave little doubt as to their constitutionality.
The Commerce Clause and its Effect on Federalism
paper focuses on the Commerce Clause. Looking at a series of cases and discussing the judicial opinions and rulings that came out of them it is concluded that there is a negative correlation between the Commerce Clause and federalism. In other words when the Commerce Clause is utilized powers are taken away from the states. From the time of ...
The Federalist Papers, the Commerce Clause, and federal tort reform.
the federalist papers' free enterprise arguments for the commerce clause Madison and Hamilton make clear in the Federalist Papers that one of the most important purposes of the new Constitution was its grant to Congress of the power to regulate commerce such that voluntarily provided goods and services could cross freely from state to state and ...
PDF Separation of Powers, Federalism, and 14th Amendment
• Federalist Papers, Minutes from Constitutional Convention, History ... The Commerce Clause Powers of CongUess: Exress Powers Gibbons v. Ogden: Court held that Commerce includes navigation/transportation, "Among" means two or more states, and "regulate" grants plenary
The Commerce Clause and the Myth of Dual Federalism
This article debunks the myth that the U.S. Supreme Court was ever committed to a Dual Federalist interpretation of the Commerce Clause from which it subsequently departed. As I argue, prior to the Civil War, the Supreme Court expressly embraced overlapping federal and state regulatory authority with respect to interstate commerce. And, even ...
Constitutional Faith and the Commerce Clause
as expressed in The Federalist papers.' 3 . On this issue, however, he does not ... (quoting THE FEDERALiST No. 45 (James Madison)). 14 Lopez, 115 S. Ct. at 1643 (Thomas,J., concurring). ... . 169 1995-1996. NOTRE DAME LAW REVIEW. against the earlier political history. For example, his interpretation of the Commerce Clause would have allowed ...
The Federalist Papers, the Commerce Clause, and federal tort reform
While the authors of the Federalist Papers wrote that the Commerce Clause was necessary to allow Congress to "multiply the means of [people's] gratification," which would "serve[] to vivify and invigorate all the channels of industry, and to make them flow with greater activity and copiousness," (105) the current state tort regime is driving ...
The Federalist Papers
The Federalist Papers is a collection of 85 articles and essays written by Alexander Hamilton, James Madison, and John Jay under the collective pseudonym "Publius" to promote the ratification of the Constitution of the United States.The collection was commonly known as The Federalist until the name The Federalist Papers emerged in the twentieth century. ...
Madison: Father of the Commerce Clause
The Right also ignores Madison's comments in Federalist Paper No. 45 about the Commerce Clause, which he acknowledges is a new power for the central government, although one that, he said ...
Historical Background on Privileges and Immunities Clause
The Clause is discussed in the Federalist papers only as a means of support for other arguments. 7 Footnote ... free ingress and regress to and from any other State, all the privileges of trade and commerce) may be used to give some general idea of the class of civil right s meant by the phrase in the Constitution. 10 Footnote Id. Topics ...

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