Emsworth
Junior Chimp
Posts: 9,054
|
|
« on: September 25, 2005, 01:09:01 PM » |
|
Congress' power to regulate commerce among the states has, undoubtedly, been abused more than any other (followed closely by the power to spend for the general welfare). The federal government has, claiming the authority granted by this clause, presumed to regulate several matters that ought to be within the sphere of the states alone. Even that proponent of a large federal government, John Marshall, would scoff at the interpretations of the modern judiciary.
In Gibbons v. Ogden, Chief Justice Marshall wrote, "Comprehensive as the word 'among' is, it may very properly be restricted to that commerce which concerns more States than one." Undoubtedly, the word "among" implies that multiple states must be involved in the commerce in question. Marshall also wrote, "It is not intended to say that these words comprehend that commerce, which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States."
The Supreme Court has, in more recent times (especially since the 1930s), taken a very different approach. It has held that anything that even affects the "current of commerce," including the most minor transactions between persons in the same state, may be regulated by Congress. This is a dangerous interpretation that unduly expands federal authority. The Constitution only authorizes the regulation of "commerce ... among the states," not "anything that affects commerce among the states." The courts have given the words "among the states" almost no effect at all.
Marshall's view (considered too broad by some jurists of the era) is perfectly correct: Congress may not regulate the sale of a good within a single state, even if such a sale somehow "affects" interstate commerce.
|