In an important new article, “To Regulate,” Not “To Prohibit”: Limiting the Commerce Power, Barry Friedman and Genvieve Lakier argue that the Commerce Clause of the United States Constitution does not grant to Congress the power to prohibit interstate commerce. In the process, the authors shed light on a fascinating historical question: why didn’t southern founders foresee that the Commerce Clause would give Congress the power to strangle slavery by banning the interstate sale and transportation of slaves? And why did northern antislavery advocates likewise not recognize that the Commerce Clause gave them this powerful weapon until the Missouri Debates of 1819, more than thirty years after ratification? The answer to both questions, the authors powerfully argue, is that it was generally recognized that the Constitution granted no such power to Congress.
By way of background, the Commerce Clause of the Constitution grants Congress the power to “regulate” both foreign commerce and commerce among the several states. Article I Section 8 succinctly provides:
The Congress shall have Power . . .
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes
There is no doubt that the power to “regulate” foreign commerce was intended and understood to ban such commerce altogether – witness the Migration or Importation Clause, which denied to Congress the power to ban the importation of slaves until 1808:
The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.
Had the power to regulate foreign commerce not included the power to prohibit it, the Migration or Importation Clause would have been unnecessary. And, as the authors detail, the fact that the same verb – “regulate” – defines Congress’s power over both foreign and interstate commerce has led modern courts and commentators to assume that the Constitution similarly granted to Congress the power to prohibit interstate commerce.
But a closer inspection of the history, the authors argue, demonstrates that the founders intended and members of the founding era understood that the same language granted dramatically different powers. In large part, this was the result of the fact that Congress was granted power over foreign and interstate commerce to facilitate dramatically different purposes. Power over foreign commerce would allow the states to present a united front against aggressive mercantilist powers such as England by, for example, prohibiting entry of goods or vessels into U.S. ports. Power over interstate commerce, in contrast, was granted to facilitate that commerce by restricting protectionist and discriminatory state trade policies that had proliferated under the Articles of Confederation.
Ironically, the treatment of and debates over the importation of slaves provide perhaps the single most compelling evidence of the differing understandings of the two clauses in the founding era. Delegates at the Philadelphia Convention immediately identified the threat that the power over foreign commerce presented to the continued importation of slaves, and delegates from Georgia and South Carolina fought bitterly to avoid that result, going so far as to “threaten to walk out of the convention if their concerns on this score were not addressed.” All of which resulted in the adoption of the Migration or Importation Clause, barring any restriction on the importation of slaves until 1808.
In contrast, “Southern delegates were noticeably silent about that possibility that Congress would use its domestic commerce powers to restrict or prohibit the interstate sale or transport of . . . slaves.”
Southern ratifying conventions were likewise oblivious of any danger from that quarter, to a man: As the historian David Lightner notes [in Slavery and the Commerce Power: How the Struggle Against the Interstate Slave Trade Led to the Civil War], “[a]lthough the Antifederalists racked their brains to conjure up every possible objection to the Constitution, not one of them ever suggested that it opened the way for Congress to restrict the interstate movement of slaves." Any number of historians have interpreted the silence of the Southern states on this issue as decisive proof that Congress’s interstate commerce powers were not intended by the Framers to empower Congress to prohibit the interstate sale or transport of slaves, or anything else.
Likewise, subsequent debates over slavery-related issues are a primary example of the continuing understanding in the Nineteenth Century that Congress lacked power to prohibit the interstate trade in slaves. A handful of “worried Southerners” first expressed their concern that Congress might attempt to ban interstate sale of slaves in 1807 during the debates over the importation ban passed that year. But the argument did not occur to anti-slavery advocates until the Missouri Crisis:
It was not until the 1819-1819 debates about whether slavery would be permitted in the new state of Missouri that slavery abolitionists came up with the argument that Congress had the constitutional authority to ban the interstate sale as well as the importation of slaves. The fact that it took thirty years for abolitionist groups to recognize that the Commerce Clause could be interpreted to vest Congress with the same power to prohibit the interstate as the foreign slave trade suggests how strongly the assumption of the Founding Era generation dictated the opposite conclusion.
The Missouri Controversy also prompted James Madison to weigh in on the issue. In a November 27, 1819 letter to Robert Walsh, Madison argued that the evidence from the founding era and thereafter made clear that Congress did not have the power to ban the "removal, voluntary or involuntary, of slaves or freemen, from one to another part of the U. States;"
But whatever may have been intended by the term "migration" or the term "persons," it is most certain, that they referred exclusively to a migration or importation from other countries into the U. States; and not to a removal, voluntary or involuntary, of slaves or freemen, from one to another part of the U. States. Nothing appears or is recollected that warrants this latter intention. Nothing in the proceedings of the State conventions indicates such a construction there. Had such been the construction it is easy to imagine the figure it would have made in many of the states, among the objections to the constitution, and among the numerous amendments to it proposed by the State conventions not one of which amendments refers to the clause in question.
Neither is there any indication that Congress have heretofore considered themselves as deriving from this Clause a power over the migration or removal of individuals, whether freemen or slaves, from one State to another, whether new or old: For it must be kept in view that if the power was given at all, it has been in force eleven years over all the States existing in 1808, and at all times over the States not then existing. Every indication is against such a construction by Congress of their constitutional powers. Their alacrity in exercising their powers relating to slaves, is a proof that they did not claim what they did not exercise. They punctually and unanimously put in force the power accruing in 1808 against the further importation of slaves from abroad. They had previously directed their power over American vessels on the high seas, against the African trade. They lost no time in applying the prohibitory power to Louisiana, which having maritime ports, might be an inlet for slaves from abroad. But they forebore to extend the prohibition to the introduction of slaves from other parts of the Union. They had even prohibited the importation of slaves into the Mississippi Territory from without the limits of the U S in the year 1798, without extending the prohibition to the introduction of slaves from within those limits; altho' at the time the ports of Georgia and S Carolina were open for the importation of slaves from abroad, and increasing the mass of slavery within the U. States.
Ten years later, in a February 13, 1829 letter to Joseph C. Cabell, “Madison made even more explicit his view that the domestic and foreign commerce clauses were neither intended, nor should be construed, as vesting Congress with equivalent power." Referring to "the 'power to regulate commerce among the several States,'" Madison asserted:
I always foresaw that difficulties might be started in relation to that power which could not be fully explained without recurring to views of it, which, however just, might give birth to specious though unsound objections. Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it. Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged.