A Prudent Regard to Our Own Good? The Commerce Clause, in Nation and States

54 Pages Posted: 10 Jul 2012

See all articles by Mark R. Killenbeck

Mark R. Killenbeck

University of Arkansas - School of Law

Date Written: June 2012


This lecture was delivered on May 23, 2012, as part of the Supreme Court Historical Society’s annual Leon Silverman Lecture Series. My goal was to discern what key founders envisioned when they crafted and approved the Commerce Clause and explore how it has been interpreted and applied by the Court. I take as my starting point themes struck by James Madison in his Vices of the Political system of the U. States, in which he noted a “want of concert in matters where the common interest requires it,” a flaw “strongly illustrated in the state of our commercial affairs,” to the point that “the national dignity, interest, and revenue [have] suffered from this cause.” Madison’s lament was not, however, about the need to guard against an overbearing federal government. Rather, he was concerned about the corrosive effects of a “a mistaken confidence” in “the justice, the good faith, the honor, the sound policy, of . . . several legislative assemblies” whose actions were marked by “caprice, jealousy, and diversity of opinions.” Madison also counseled against excessive reliance on interpretations grounded solely in the drafting and ratification debates, speaking of the need to “liquidate and ascertain” meaning over time, recognizing, as did Chief Justice John Marshall, that the Constitution was “intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.” A close and careful reading of both Madison and Marshall – in particular, Marshall’s opinion for the Court in Gibbons v. Ogden (1824) – suggests, accordingly, that sharp departures from the original understanding of the Commerce Clause occurred long before Wickard v. Filburn (1942), and that there is substantial support for an expansive reading of the nature and scope of the commerce power in the words and intentions of the founders.

Keywords: Commerce Clause, Original Intent, Constitutional Convention, Intent of the Framers, Federal Powers, Federalist Papers, John Marshall, James Madison, Alexander Hamilton, James Wilson, Thomas Jefferson, Edmund Burke, Gibbons v. Ogden, McCulloch v. Maryland, Wickard v. Filburn, Powers of Congress

JEL Classification: H1, H4, H5, H10, H11, H50, H51, H53

Suggested Citation

Killenbeck, Mark Robert, A Prudent Regard to Our Own Good? The Commerce Clause, in Nation and States (June 2012). University of Arkansas Research Paper No. 13-06, Available at SSRN: https://ssrn.com/abstract=2103262 or http://dx.doi.org/10.2139/ssrn.2103262

Mark Robert Killenbeck (Contact Author)

University of Arkansas - School of Law ( email )

361 Waterman Hall
Fayetteville, AR 72701
United States
479 575 4358 (Phone)

HOME PAGE: http://law.uark.edu/faculty-staff/faculty-directory/?user=mkillenb

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics