Interstate Commerce and the Principles of the Law of Nations

Abstract:     
This article provides an analysis of the commerce power in light of contemporaneous authorities on the law of nations, and in particular the writings of Emmerich Vattel. Vatel's treatise, The Law of Nations, was a widely-read contemporaneous reference source on international law when the Constitution was drafted and ratified. The article provides an overview of the structural similarities and differences between the international system and the federal system established under the Constitution. It then discusses Vattel's treatise, focusing on his treatment of principles governing commerce among sovereign nations in the international system. It then draws parallels between the principles identified by Vattel and those embodied in the Constitution. Most significantly, Vattel's work underscores the notion that interstate commerce was viewed as being primarily a relationship among sovereign states, not individuals. Thus, as is reflected in the text of the Commerce Clause, the congressional power was directed to sovereign states, not regulating individuals directly. The article analyzes the Court's Commerce Clause jurisprudence in light of this theory. While the Court's dormant Commerce Clause doctrine is consistent with many of the principles found in the works of writers on the law of nations, its affirmative Commerce Clause decisions stray from the original meaning of the Clause and warrant a rethinking of the Court's affirmative Commerce Clause cases.

Keywords: Constitution, commerce clause, interstate commerce, Vattel, law of nations, international law

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