6 U. Pa. J. Const. L. 183 (2003-2004)
The Original Meaning of the Necessary and Proper Clause

handle is hein.journals/upjcl6 and id is 197 raw text is: ARTICLES

Randy E. Barnett
Whatever meaning this clause may have, none can be admitted, that
would give an unlimited discretion to Congress.
-James Madison
In two articles, The Original Meaning of the Commerce Clause and
New Evidence of the Original Meaning of the Commerce Clause,3 1 presented
evidence of the public meaning of Congress's power [t]o regulate
Commerce with foreign Nations, and among the several States, and
with the Indian Tribes.4 Commerce meant the trade or exchange
of goods (including the means of transporting them); among the
several States meant between persons of one state and another; and
the term [t] o regulate meant to make regular-to specify how an
activity may be transacted-when applied to domestic commerce, but
also included the power to make prohibitory regulations when ap-
plied to foreign trade.5 In sum, Congress has power to specify rules
to govern the manner by which people may exchange or trade goods
from one state to another, to remove obstructions to domestic trade
erected by states, and to both regulate and restrict the flow of goods
to and from other nations (and the Indian tribes) for the purpose of
promoting the domestic economy and foreign trade.
Austin B. Fletcher Professor, Boston University School of Law (rbarnett@bu.edu). My
thanks to Kate McFarland for her research assistance. Permission to photocopy for classroom
use is hereby granted.
1 ANNALS OF CONG. 1947 (Joseph Gales ed., 1791) (Ed. Note: The Annals of the 1st Con-
gress are particularly problematic in citing due to differing hard-to-find versions that often do
not clearly delineate volume numbers. All citations to 1 ANNALS OF CONG. herein are to the
Annals of the 1st Congress, 1789-1791, as edited by Joseph Gales and available on the Library of
Congress's Web site at http://memory.loc.gov/ammem/amlaw/lwaclink.hinl).
2 Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 U. CHI. L. REv. 101
(2001) [hereinafter Barnett, Original Meaning].
Randy E. Barnett, New Evidence of the Original Meaning of the Commerce Clause, 55 ARK. L.
REV. 847 (2003) [hereinafter Barnett, New Evidence].
4 U.S. CONST. art. I,  8, cl. 3.
5 Barnett, Original Meaning, supra note 2, at 101.

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