The Constitution delegates to Congress
the power "[t]o regulate Commerce with foreign Nations, and among
the several States, and with the Indian Tribes." U.S. Const., Art.
I, 8, cl. 3. The Court, through Chief Justice Marshall, first defined
the nature of Congress' commerce power in Gibbons v. Ogden, 9 Wheat.
1, 189-190 (1824):
"Commerce, undoubtedly, is traffic,
but it is something more: it is intercourse. It describes the
commercial intercourse between nations, and parts of nations,
in all its branches, and is regulated by prescribing rules for
carrying on that intercourse."
The commerce power "is the power
to regulate; that is, to prescribe the rule by which commerce is
to be governed. This power, like all others vested in Congress,
is complete in itself, may be exercised to its utmost extent, and
acknowledges no limitations, other than are prescribed in the constitution."
Id., at 196. The Gibbons Court, however, acknowledged that limitations
on the commerce power are inherent in the very language of the Commerce
Clause. [ UNITED STATES v. LOPEZ, ___ U.S. ___ (1995) , 4]
"It is not intended to say that
these words comprehend that commerce, which is completely internal,
which is carried on between man and man in a State, or between
different parts of the same State, and which does not extend
to or affect other States. Such a power would be inconvenient,
and is certainly unnecessary.
"Comprehensive as the word
`among' is, it may very properly be restricted to that commerce
which concerns more States than one. . . . The enumeration presupposes
something not enumerated; and that something, if we regard the
language or the subject of the sentence, must be the exclusively
internal commerce of a State." Id., at 194-195.
For nearly a century thereafter,
the Court's Commerce Clause decisions dealt but rarely with the
extent of Congress' power, and almost entirely with the Commerce
Clause as a limit on state legislation that discriminated against
interstate commerce. See, e.g., Veazie v. Moor, 14 How. 568, 573-575
(1853) (upholding a state-created steamboat monopoly because it
involved regulation of wholly internal commerce); Kidd v. Pearson,
128 U.S. 1, 17, 20-22 (1888) (upholding a state prohibition on the
manufacture of intoxicating liquor because the commerce power "does
not comprehend the purely domestic commerce of a State which is
carried on between man and man within a State or between different
parts of the same State"); see also L. Tribe, American Constitutional
Law 306 (2d ed. 1988). Under this line of precedent, the Court held
that certain categories of activity such as "production," "manufacturing,"
and "mining" were within the province of state governments, and
thus were beyond the power of Congress under the Commerce Clause.
See Wickard v. Filburn,
317 U.S. 111, 121 (1942) (describing development of Commerce
Clause jurisprudence). [ UNITED STATES v. LOPEZ, ___ U.S. ___ (1995)
, 5]
[United States v. Lopez,
514 U.S. 549 (1995)]