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 etymology of the word
commerce 1 carries the primary meaning of traffic, of transporting goods across state lines for sale. This possibly narrow constitutional conception was rejected by Chief Justice Marshall in Gibbons v. Ogden, 2 which remains one of the seminal cases dealing with the Constitution. The case arose because of a monopoly granted by the New York legislature on the operation of steam-propelled vessels on its waters, a monopoly challenged by Gibbons, who transported passengers from New Jersey to New York pursuant to privileges granted by an act of Congress. 3 The New York monopoly was not in conflict with the congressional regulation of commerce, argued the monopolists, because the vessels carried only passengers between the two states and were thus not engaged in traffic, in
commerce in the constitutional sense.
The subject to be regulated is commerce, the Chief Justice wrote.
The counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a general term, applicable to many objects, to one of its significations. Commerce, undoubtedly, is traffic, but it is something more – it is intercourse. 4 The term, therefore, included navigation, a conclusion that Marshall also supported by appeal to general understanding, to the prohibition in Article I, § 9, against any preference being given
by any regulation of commerce or revenue, to the ports of one State over those of another, and to the admitted and demonstrated power of Congress to impose embargoes. 5
Marshall qualified the word
intercourse with the word
commercial, thus retaining the element of monetary transactions. 6 But, today,
commerce in the constitutional sense, and hence
interstate commerce, covers every species of movement of persons and things, whether for profit or not, across state lines, 7 every species of communication, every species of transmission of intelligence, whether for commercial purposes or otherwise, 8 every species of commercial negotiation that will involve sooner or later an act of transportation of persons or things, or the flow of services or power, across state lines. 9
There was a long period in the Court's history when a majority of the Justices, seeking to curb the regulatory powers of the Federal Government by various means, held that certain things were not encompassed by the Commerce Clause because they were neither interstate commerce nor bore a sufficient nexus to interstate commerce. Thus, at one time, the Court held that mining or manufacturing, even when the product would move in interstate commerce, was not reachable under the Commerce Clause; 10 it held insurance transactions carried on across state lines not to be commerce, 11 and that exhibitions of baseball between professional teams that travel from state to state were not in commerce. 12 Similarly, it held that the Commerce Clause was not applicable to the making of contracts for the insertion of advertisements in periodicals in another state 13 or to the making of contracts for personal services to be rendered in another state. 14
Later decisions either have overturned or have undermined all of these holdings. The gathering of news by a press association and its transmission to client newspapers are interstate commerce. 15 The activities of Group Health Association, Inc., which serves only its own members, are
trade and capable of becoming interstate commerce; 16 the business of insurance when transacted between an insurer and an insured in different states is interstate commerce. 17 But most important of all there was the development of, or more accurately the return to, 18 the rationales by which manufacturing, 19 mining, 20 business transactions, 21 and the like, which are antecedent to or subsequent to a move across state lines, are conceived to be part of an integrated commercial whole and therefore subject to the reach of the commerce power.