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16 - Commerce

from Part VII - Federalism

Published online by Cambridge University Press:  22 May 2026

Ilan Wurman
Affiliation:
University of Minnesota Law School
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Summary

This chapter turns back to the scope of national powers, and argues that the original meaning of the Commerce Clause limits Congress to regulating the exchange of goods across state lines, and critiques the Supreme Court’s modern, expansive interpretation of the clause. It demonstrates, however, that the national commerce power was understood to be exclusive, lending support to the modern dormant Commerce Clause doctrine that restricts states from interfering with interstate commerce and that many originalists have opposed. It argues that, as originally understood, States retain police powers to regulate the health, safety, morals, and welfare of their populations and can incidentally affect interstate commerce through police regulations, as long as they have a legitimate purpose and do not target interstate commerce. Congress, similarly, could incidentally affect the states’ police powers or private conduct beyond the enumeration of powers so long as it was genuinely exercising its power over interstate commerce, such as when it closed the channels of interstate commerce to goods produced with child labor. This formalist approach reveals a symmetry in the original distribution of power between Congress and the states.

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  • Commerce
  • Ilan Wurman, University of Minnesota Law School
  • Book: The Constitution of 1789
  • Online publication: 22 May 2026
  • Chapter DOI: https://doi.org/10.1017/9781009485708.025
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  • Commerce
  • Ilan Wurman, University of Minnesota Law School
  • Book: The Constitution of 1789
  • Online publication: 22 May 2026
  • Chapter DOI: https://doi.org/10.1017/9781009485708.025
Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • Commerce
  • Ilan Wurman, University of Minnesota Law School
  • Book: The Constitution of 1789
  • Online publication: 22 May 2026
  • Chapter DOI: https://doi.org/10.1017/9781009485708.025
Available formats
×