ArtI.S8.C3.1.10.4 Interstate Commerce: Power to Prohibit Questioned

Article I, Section 8, Clause 3:

[The Congress shall have Power . . .] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; . . .

The question whether Congress’s power to regulate commerce among the several States embraced the power to prohibit it furnished the topic of one of the most protracted debates in the entire history of the Constitution's interpretation, a debate the final resolution of which in favor of congressional power is an event of first importance for the future of American federalism. The issue was as early as 1841 brought forward by Henry Clay, in an argument before the Court in which he raised the specter of an act of Congress forbidding the interstate slave trade. 1 The debate was concluded ninety-nine years later by the decision in United States v. Darby, 2 which sustained the Fair Labor Standards Act. 3

Footnotes

  1.   Groves v. Slaughter, 40 U.S. (15 Pet.) 449, 488-89 (1841).
  2.  312 U.S. 100 (1941).
  3.  The judicial history of the argument may be examined in the majority and dissenting opinions in Hammer v. Dagenhart, 247 U.S. 251 (1918), a five-to-four decision, in which the majority held Congress not to be empowered to ban from the channels of interstate commerce goods made with child labor, since Congress’s power was to prescribe the rule by which commerce was to be carried on and not to prohibit it, except with regard to those things the character of which – diseased cattle, lottery tickets – was inherently evil. With the majority opinion, compare Justice Stone's unanimous opinion in United States v. Darby, 312 U.S. 100, 112-24 (1941), overruling Hammer v. Dagenhart. See also Corwin, The Power of Congress to Prohibit Commerce, 3 Selected Essays on Constitutional Law 103 (1938).