Editing Commerce Clause (section)

=== Significance in federal rights in navigable waters ===
{{main|Navigable servitude}}
The Commerce Clause provides comprehensive powers to the United States over [[Inland waterways of the United States|navigable waters]]. The powers are critical to understand the rights of landowners adjoining or exercising what would otherwise be [[riparian water rights|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 that purpose, and to the extent necessary, of all the navigable waters of the United States.... For this purpose they are the public property of the nation, and subject to all the requisite legislation by Congress." ''United States v. Rands'', {{ussc|389|121|1967}}. The ''Rands'' decision continues:

<blockquote>This power to regulate navigation confers upon the United States a [[Navigable servitude|dominant servitude]], ''FPC v. Niagara Mohawk Power Corp.'', 347 U.S. 239, 249 (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 to the United States Constitution|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, M., St. P. & P. R. Co.'', 312 U.S. 592, 596–597 (1941); ''Gibson v. United States'', 166 U.S. 269, 275–276 (1897). Thus, without being constitutionally obligated to pay compensation, the United States may change the course of a navigable stream, ''South Carolina v. Georgia'', 93 U.S. 4 (1876), or otherwise impair or destroy a riparian owner's access to navigable waters, ''Gibson v. United States'', 166 U.S. 269 (1897); ''Scranton v. Wheeler'', 179 U.S. 141 (1900); ''United States v. Commodore Park, Inc.'', 324 U.S. 386 (1945), even though the market value of the riparian owner's land is substantially diminished.</blockquote>

Some 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 [[Philadelphia Convention|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'."<ref>{{cite journal|first1=Robert |last1=Bork |first2=Daniel E.|last2= Troy |title=Locating the Boundaries: The Scope of Congress's Power to Regulate Commerce|volume=25|journal=[[Harvard Journal of Law and Public Policy]] |pages=849, 861–62 |year=2002}}</ref><ref>{{cite web |url=http://purplemotes.net/2006/06/19/peer-production/ |title=purple motes » peer production |date=June 19, 2006 |publisher=Purplemotes.net |access-date=September 6, 2008 |url-status=live |archive-url=https://web.archive.org/web/20081018185700/http://purplemotes.net/2006/06/19/peer-production/ |archive-date=October 18, 2008 |df=mdy-all}}</ref>

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 any thing; trade; traffick," but it defines the corresponding verb "to commerce" more broadly as "[t]o hold intercourse."<ref>{{cite web|url=https://books.google.com/books?id=j-UIAAAAQAAJ&q=commerce&pg=PT492|title=A dictionary of the English language. Abstracted from the folio ed., by the author. To which is prefixed, A grammar of the English language|first=Samuel|last=Johnson|date=May 1, 1792|access-date=May 1, 2018|via=Google Books}}</ref> The word "intercourse" also had a different and wider meaning back in 1792, compared to today.

Nevertheless, in ''[[Gibbons v. Ogden]]'' (1824), the Court ruled unanimously that congressional power extends to regulation over navigable waters.<ref>{{cite journal |last1=Powell |first1=William J. |title=Just Compensation and the Navigation Power |journal=[[Washington Law Review]] |date=1956 |volume=31 |page=272 |url=https://digitalcommons.law.uw.edu/wlr/vol31/iss3/5}}</ref>