ABSTRACT

Removal of trade restrictions imposed by the states was a moving cause of the Convention of 1787. For protection against these burdens, James Madison, as a member of the Continental Congress, had advocated general authority over commerce. The intriguing question of the meaning of the commerce clause was first presented to the Court in 1824. The Marshall Court's experience demonstrated that the commerce clause would be a battleground between believers in state prerogatives and supporters of a strong national presence. The opinions delivered during the Marshall and Taney courts contained plenty of ammunition for those advocating or opposing commercial regulation by either state or nation. As inspired by the Cooley doctrine, the Court's first duty in the absence of congressional legislation has been to determine the nature of the subject matter regulated. However, once Congress began to enact economic legislation of its own, the commerce clause in its active mode became a persistent constitutional issue.