Was the Power to Regulate Commerce Understood To Be a Power to Regulate the Economy?

• In Event: Legal Doctrines and Their Political Effects

Abstract

In Lopez v. US (1995) the Supreme Court narrowed the power to regulate commerce among the several states by requiring that activities to be regulated had to be “economic in nature.” This resulted in overturning a few laws, but with a more conservative Supreme Court now in place there is concern that they might overturn more laws such as environmental or civil rights laws, that might not be “economic in nature.”
We argue that the regulation of commerce among the several states was understood by the Framers in the first place to regulate what was economic in nature.
At the framing of the Constitution, the word “economy” or “oeconomy,” meant “management of a household.” The name “economy” for the concept of production and distribution of goods and services for a society only came into use at the end of the Nineteenth Century. So “economic in nature” would not have made sense to the Framers.
But the Framers did have a concept of the economy, one that had emerged by the mid 1700’s if not earlier, and that is what they meant by the whole phrase, “the regulation of commerce.” Thus, the power to regulate commerce extends to the entire economy in the first place. Based on the original understanding of the power to regulate commerce among the several states, Lopez limits the power too much, and the necessary and proper clause can be used Constitutionally to reach non-economic activities that affect commerce.

Author

• Conrad J Weiler, Rowan University