Navigable Waters in the Commerce Clause

The significance of the Commerce Clause is described in the Supreme Court opinion in Gonzales v. Raich (2005):

The Commerce Clause emerged as the Framer's response to the central problem giving rise to the Constitution itself: the absence of any federal commerce power under the Articles of Confederation. For the first century of our history, the primary use of the Clause was to preclude the kind of discriminatory state legislation that had been once permissible. Then, in response to rapid industrial development and an increasingly interdependent national economy, "Congress ushered in a new era of federal regulation under the commerce power," beginning with the enactment of the Interstate Commerce Act in 1887 and the Sherman Antitrust Act in 1890.

The Commerce Clause represents one of the most fundamental powers delegated to Congress by the founders. The outer limits of the Interstate Commerce Clause power have been the subject of long, intense political controversy. Interpretation of the sixteenth words of the Commerce Clause has helped define the balance of power between the federal government and the states and the balance of power between the two elected branches of the federal government and the judiciary. As such, it directly affects the lives of American citizens.

Federal Rights in Navigable Waters

The Commerce Clause provides comprehensive powers to the United States over navigable waters. The powers are critical to understand the rights of landowners adjoining or exercising what would otherwise be riparian rights under the common law. The Commerce Clause confers a unique position upon the federal government in connection with navigable waters: "The power to regulate commerce comprehends the control for what purpose, and to the extent necessary, of all the navigable waters in the United States.... For this purpose, they are the public property of the nation, and subject to all the requisite legislation by Congress."

The United States v. Ranch (1967) decision continues:

This power to regulate navigation confers upon the United States a dominant servitude, FPC v. Niagara Mohawk Power Corp. (1954), which extends to the entire stream and the stream bed below ordinary high-water mark. The proper exercise of this power is not an invasion of any private property rights in the stream or the lands underlying it, for the damage sustained does not result from taking property from riparian owners within the meaning of the Fifth Amendment but from the lawful exercise of a power to which the interests of riparian owners have always been subject. United States v. Chicago (1941); Gibson v. United States (1897). Thus, without being constitutionally obligated to pay compensation, the United States may change the course of a navigable stream, South Carolina v. Georgia (1876), or otherwise impair or destroy a riparian owner's access to navigable waters, Gibson v. United States (1897), Scranton v. Wheeler (1900), United States v. Commodore Park, Inc. (1945), even though the market value of the riparian owner's land is substantially diminished.

Other scholars, such as Robert H. Bork and Daniel E. Troy, argue that prior to 1887, the Commerce Clause was rarely invoked by Congress and so a broad interpretation of the word "commerce" was clearly never intended by the founding fathers. In support of that claim, they argue that the word "commerce," as used in the Constitutional Convention and the Federalist Papers, can be substituted with either "trade" or "exchange" interchangeably and still preserve the meaning of those statements. They also point to James Madison's statement in an 1828 letter that the "Constitution vests in Congress expressly... the power to regulate trade."

Examining contemporaneous dictionaries does not neatly resolve the matter. For instance, the 1792 edition of Samuel Johnson's A Dictionary of the English Language defines the noun "commerce" narrowly as "[e]xchange of one thing for another; interchange of a thing; trade: traffick," but it defines the corresponding verb "to commerce" more broadly as "[t]o hold intercourse." The word "intercourse" also had a different and wider meaning back in 1792, compared today.

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