A.2. Material Interstate Legislation

Congress shall have the authority to legislate on matters that materially and necessarily concern coordination or relations among two or more States, but only when such legislation is essential to resolve a demonstrable jurisdictional conflict, ensure the uniform application of Civil or Natural Rights across State boundaries, or provide a framework for lawful intergovernmental cooperation.

This authority shall not extend to matters that States can resolve independently, nor to those that merely affect multiple States without requiring federal involvement.

One of the big problems with the Articles of Confederation was that there was no way to regulate interstate conflicts, especially economic and military matters. The trade problems between states were significant enough that they led to a call for the Annapolis Convention. That convention was only attended by delegates from five of the thirteen states, but delegates called for a broader convention to revise the Articles, which led to the Philadelphia Convention (also known as the Constitutional Convention of 1787).

That’s why the framers of the Constitution of 1789 included the language giving Congress power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”[1] This has been dubbed the “Interstate Commerce Clause,” or sometimes simply the “Commerce Clause.” It was intended to help with coordinating trade between political entities.

There was no meaningful history for the clause from 1781 until 1824. That year, the Supreme Court ruled on Gibbons v. Ogden (1824),[2] providing the first judicial interpretation of the clause. The court defined commerce to include all commercial activity, not just buying and selling. It found that “amont the several states” meant commerce affecting more than one state. And it found tht states can’t burden interstate commerce simply because Congress hasn’t acted. In the ensuing forty years, two cases narrowed that scope: Willson v. Black Bird Creek Marsh Co. (1829)[3], and Cooley v. Board of Wardens (1851).[4] These two cases returned some regulatory power to the states.

A crisis erupted in the 1930’s. The Great Depression was in full swing, and the New Deal brought sweeping new federal programs. Under the existing legal doctrines, the Interstate Commerce Clause was interpreted narrowly. In Schechter Poultry Corp., v. United States (1935),[5] the Supreme Court found the National Industrial Recovery Act was unconstitutional by giving the President overly broad power without clear standards from Congress. The following year, in the Carter v. Carter Coal (1936)[6] case, the court ruled the congressional power to regulate under the Commerce Clause didn’t include control of the conditions of producing it before it became a commodity. The Roosevelt Administration didn’t throw in the towel. They pushed back and continued their New Deal programs. In NLRB v. Jones & Laughlin Steel (1937),[7] the court upheld federal labor regulation of manufacturing and in United States v. Darby (1941),[8] it overturned earlier precedents, allowing the federal minimum wage. In Wickard v. Filburn (1942),[9] the court established the “aggregation principle,” which allows congress to regulate local activities if their aggregate effect substantially affects interstate commerce, even if the individual instances don’t. Effectively, this opened the door for almost any economic activity to be regulated under the clause. That’s because most commercial activity aggregates in exactly that way. It allowed for some very beneficial changes in American law – the Civil Rights Act of 1964, environmental regulations, and workplace safety standards among them.

I won’t argue the Civil Rights Act was bad law. I’m in favor of a healthy environment and a safe workplace. I think its important that Congress have the ability to legislate on those matters. Article II, Section 4.A.1 of this Charter grants exactly that kind of legislative authority to Congress. What I will argue, though, is that stretching the apparent intent of the Commerce Clause in the way that has been done is dangerous. There is now a loaded shotgun in the hands of Congress that can be used to legislate on almost any economic subject. That’s not a great idea.

This clause restores some boundaries to interstate regulation. Congress can still do it, that’s explicitly allowed. What it can’t do is act broadly. There has to be a demonstrable need that can’t be resolved another way.

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[1] U.S. Const., art. I, § 8, cl. 3. For the layperson, that is the third clause of Article I, Section 8 of the U.S. Constitution.

[2] Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824).

[3] Willson v. Black Bird Creek Marsh Co., 27 U.S. (2 Pet.) 245 (1829).

[4] Cooley v. Board of Wardens, 53 U.S. (12 How.) 299 (1851).

[5] A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).

[6] Carter v. Carter Coal Co., 298 U.S. 238 (1936).

[7] NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).

[8] United States v. Darby, 312 U.S. 100 (1941).

[9] Wickard v. Filburn, 317 U.S. 111 (1942).