The Case to Reexamine the Commerce Clause

Michael R. Brodarick, Nova Southeastern University

Abstract

Perhaps no other clause in the Constitution has allowed Congress to exercise more power beyond its enumerated authority than article 1, section 8, clause 3 (the commerce clause). The modern interpretation of the commerce clause has drifted very far from the original intent of the framers of the Constitution, allowing Congress to regulate purely internal state activity that should rightly be left to local governments to regulate. By providing historical context and an overview of the case law, this essay illustrates how far modern jurisprudence has strayed from the original understanding of the commerce clause, and consequently that, as Justice Thomas indicated, the Supreme Court should replace its existing Commerce Clause jurisprudence with a standard more consistent with the original understanding.