No express grant of this power is found in the Constitution. Its
advocates have differed among themselves as to the source from which it
is derived as an incident. In the progress of the discussions upon this
subject the power to regulate commerce seems now to be chiefly relied
upon, especially in reference to the improvement of harbors and rivers.
In relation to the regulation of commerce, the language of the grant in
the Constitution is:
Congress shall have power to regulate commerce with foreign nations,
and among the several States, and with the Indian tribes.
That to "regulate commerce" does not mean to make a road, or dig a
canal, or clear out a river, or deepen a harbor would seem to be obvious
to the common understanding. To "regulate" admits or affirms the
preexistence of the thing to be regulated. In this case it presupposes
the existence of commerce, and, of course, the means by which and the
channels through which commerce is carried on. It confers no creative
power; it only assumes control over that which may have been brought
into existence through other agencies, such as State legislation and the
industry and enterprise of individuals.
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