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Commerce Clause: States
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The Commerce Clause raises three questions that must be answered by interpretation, construction, or both: What is the meaning of "Commerce"? What is the meaning of "among the several States"? And what is the meaning of "To regulate"? The source of the scholarly debate lies in the fact that, unlike some other provisions of the Constitution, the evidence of "original intent, meaning, and understanding"
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If Senator Feinstein was truly concerned about the proper interpretation of the Commerce Clause, then she could resolve this issue by simply consulting Federalist Essay No. 45. In this essay, James Madison, who is recognized as the father of the Constitution, distinguished the external powers granted to the federal government from the domestic powers reserved to the States. These two paragraphs provide a basic blueprint of the structure of government established by the Constitution:
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The Commerce Clause was designed to eliminate an intense rivalry between those states that had tremendous commercial advantage as a result of their proximity to a major harbor, and those states that were not near a harbor. That disparity was the source of constant economic battles between the states. The exercise by Congress of its regulatory power has increased steadily with the growth and expansion of industry and means of transportation.
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Except, it turns out, with respect to the Commerce Clause, which early Congresses invoked sparingly, if at all. Naturally, this meant few opportunities for judicial pronouncements on the subject. "Not until 1824 by the decision of the Supreme Court in Gibbons v. Ogden was a clear indication given of the extent of the power granted, and not until the Constitution was nearly a hundred years old did Congress begin the exercise of the authority granted it to regulate, affirmatively, commerce between the States."[32] Rather, "[b]efore [1887] the commercial power granted to the federal government had been employed only by way of preventing an interference with interstate and foreign commerce by the States."[33] Thus, Supreme Court jurisprudence on the Commerce Clause is both late in time after the founding and relatively indeterminate.
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Before analyzing whether the activity being regulated violates the Commerce Clause, it must first be determined that such activity concerns interstate commerce. [107] Three aggregate reasons support the conclusion that Internet gambling would be considered interstate commerce. First, the state statutes which prohibit businesses from offering gambling services to in-state citizens are broad enough that they would permit prosecution of out-of-state defendants. [108] Second, the nature of the Internet does not allow a business which creates a web site to close itself off to users from another state. [109] Finally, the Internet has consistently been referred to as the "information superhighway" [110] which transports digitized goods, thereby making it analogous to highways and railroads which have historically been considered a conduit for the interstate transportation of services. [111] Thus, regulating the Internet does have an affect on interstate commerce.
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The Commerce Clause is arguably the most successful pro-growth policy in history; it maintains the 50 U.S. states as one huge, unified free-trade zone. Its purpose was to prevent states from imposing tariffs on goods and services produced in other states -- as happened under the Articles of Confederation.
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