Congress and the Constitution

The Commerce Clause and the Expanding Powers of Congress

Clock 90 minutes

During the first seventy years of the republic, Congress did not greatly intervene in the commercial affairs of the states. After the Civil War, Congress seized upon Article I, Section 8 (the Commerce Clause) to intervene more heavily in Americans’ economic activities. The Supreme Court approved Congress’ interpretation of the Commerce Clause and the federal government’s oversight of interstate commerce has grown since. In recent years, there has been more opposition to regulation and some in Congress have worked to decrease the level of intervention.

Founding Principles

Federalism image


The people delegate certain powers to the national government, while the states retain other powers; and the people, who authorize the states and national government, retain all freedoms not delegated to the governing bodies.

Limited Government image

Limited Government

Citizens are best able to pursue happiness when government is confined to those powers which protect their life, liberty, and property.

Separation of Powers image

Separation of Powers

A system of distinct powers built into the Constitution to prevent an accumulation of power in one branch.


James Wilson [Pennsylvania]: “Despotism comes on Mankind in different Shapes, sometimes in an Executive, sometimes in a Military, one. Is there no danger of a Legislative despotism? Theory & practice both proclaim it. If the Legislative authority be not restrained, there can be neither liberty nor stability; and it can only be restrained by dividing it within itself, into distinct and independent branches.” - THE DEBATES IN THE FEDERAL CONVENTION OF 1787 (MAY 31, 1787)


During the first century of the United States, the Congress acted upon the powers delegated to it by the Constitution, particularly those enumerated in Article I, Section 8. While this entailed some regulation by the national government, most economic policies were enacted at the state and local levels, and the federal government exercised little regulation of the economy.

In the decades that followed the Civil War, the scope of power of Congress would grow exponentially. This expansion of power was fueled by new interpretations of the Commerce Clause in Article I, Section 8, which empowered Congress to “regulate interstate commerce.” However in the late nineteenth and twentieth centuries it was interpreted to justify a regulatory state that encompassed almost every aspect of American public life. These interpretations were confirmed and expanded by a series of Supreme Court decisions. The Supreme Court allowed Congress to exercise new powers in the name of commerce and to delegate its regulatory authority to the executive.

In recent years there has been more resistance to this course of expansion. The Supreme Court more narrowly defined what commerce is and restricted the scope of congressional power. This has been further advanced by rules changes in the House of Representatives that require new bills to be more closely aligned with the enumerated powers of the Constitution.


  • Students will explain how the powers of Congress have changed over time especially due to changing understandings of the Commerce Clause of Article I, Section 8.
  • Students will understand the role of the Supreme Court in broadly interpreting the Commerce Clause to expand the legislative powers of Congress and to allow Congress to delegate regulatory authority to the executive branch during and after the New Deal.
  • Students will analyze the differences in length and complexity of language between laws written before 1900 and recent laws.


  • Handout A: Background Essay—The Expansion of Congressional Power
  • Handout B: Timeline of Changing Commerce Powers of Congress
  • Handout C: Article I, Section 8 of the U.S. Constitution
  • Handout D: Excerpts from U.S. v. Darby Lumber (1941)
  • Handout E: Excerpts from U.S. v. Lopez (1995)
  • Handout F: Interpreting Commerce Laws
  • Handout G: Homestead Act of 1862
  • Handout H: Affordable Care Act of 2010
  • Handout I: Comparing Laws

Key Terms

  • Enumerated powers
  • Commerce Clause
  • Interstate commerce
  • Legislation
  • Laissez-faire
  • Regulation
  • Administrative state


  • NCSS Framework: D2.Civ.4.6-8., D2.Civ.4.9-12., D2.Civ.6.9-12
  • Center for Civic Educaton (CCE): CCE I,B,1; CCE I,C,1; CCE I, C, 2; CCE I, D, 2; CCE II, D, 3; CCE III, A, 1; CCE III, B, 1; and CCE III, C, 1.
  • UCLA Department of History (NCHS): Era 3, Standard 3; Era 7, Standard 1, Era 8, Standard 2

Background Homework15 min.

Have students read Handout A: Background Essay—The Expansion of Congressional Power and answer the Critical Thinking questions.

Activities 40-45 min. total

Activity I » 10-15 minutes

  1. Each student will receive a copy of Handout B: Timeline of Changing Commerce Powers of Congress, and fill in the facts of each entry and analyze whether it expanded or narrowed congressional power under the Commerce Clause of Article 1, section 8, based on Handout A: The Expansion of Congressional Power. Remind them to refer to Handout A as they complete the timeline chart.
  2. Ask students to share what they wrote on Handout B. Discuss each of the seven landmarks so that everyone has the correct information.

Activity II » 30 minutes

  1. Divide the students into groups of three.
  2. Each group will receive a copy of Handout C: Article I section 8 of the Constitution, Handout D: Excerpts from U.S. v. Darby Lumber (1941), and Handout E: Excerpts from U.S. v. Lopez (1995). Have the students each read one of the documents. When they are done, have them explain the topic of their document to the other members of the group.
  3. Hand out a copy of Handout F: Interpreting Commerce Laws to each group. The groups will have two fictional laws to examine in order to consider the constitutionality of the laws and how they may have been interpreted differently in different time periods. They will be considering the laws based on the current precedent as of 1850, 1950, and 2000.
  4. The outcome will be decided by a 2-1 vote if they cannot arrive at a unanimous decision.
  5. The group members will then provide a written explanation (5-7 sentences) for each opinion. They will need to explain their decision in factual terms and cite evidence from Handouts A, B, C, D, and E to support their opinions.
  6. After students have completed their opinions, poll the class to see how they decided the cases. If they do not agree, have students compare their answers with each other and then take a class vote to see whose opinion prevailed.

Homework Options 20-30 mins.

  1. Introduce the idea that as Congress has taken on more and more powers, it also has written laws in an increasingly lengthy and complex manner. As an example offer up the Homestead Act of 1862 and the Affordable Care Act of 2010.
  2. Have the students read the Homestead Act and parts of the Affordable Care Act in Handout G: Homestead Act of 1862 and follow the link in Handout H: Affordable Care Act of 2010.
  3. Have the students complete Handout I: Comparing Laws in which students will:
    1. Compare and contrast the length of each law
    2. Compare and contrast the complexity of the language in each law
    3. Explain the difference between laws in 1862 and 2010 and why this might be related to the increase in the powers of Congress
    4. How does the complexity reflect what is being addressed by Congress in the legislation?
    5. How might this be reflective of Congresses changing role in society?

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