How the Power to Regulate Commerce Among the Several States Became the Interstate Commerce Power: A Content Analysis of Supreme Court Opinions

Abstract

The term interstate was invented in the 1840's and first used in a Supreme Court majority opinion in 1869. Since then it has largely displaced usage of the original language of the constitution, i.e., the regulation of the several This paper presents data showing the rise of 'interstate since 1869 over the language of the constitution, along with related data concerning use of the phrase between the several The paper argues that the dominant usage of interstate has not been neutral, but has accompanied and reinforced a narrower view of the power to regulate commerce the several as limited to activities crossing state boundaries, and has resulted in the Court adopting additional doctrines to allow it to regulate activity inside states. In addition to the data on usage by the Court, the paper also surveys early Court interpretation of among the several states in Gibbons v. Ogden, explores the origins of the term interstate commerce, surveys academic literature relating to the reasons for the use of the term and its implications, and reviews recent use of the term interstate by the Court, especially in the Lopez decision.