Agriculture, manufacturers and commerce are acknowledged to be the three great sources of wealth in any state. By the first we are to understand not only tillage, but whatever regards the improvement of the earth; as the breeding of cattle, the raising of trees, plants and all vegetables that may contribute to the real use of man; the opening and working of mines, whether of metals, stones, or mineral drugs; by the second, all the arts, manual or mechanic; by the third, the whole extent of navigation with foreign countries.
—PENNSYLVANIA GAZETTE (January 13, 1790)
The Necessary and Proper Clause commands that all laws passed by Congress shall be proper. When a government restriction of liberty is challenged by an affected citizen, a Presumption of Liberty means that the citizen wins, unless the government can justify its restrictions as proper. A “proper” exercise of power is one that is within the jurisdiction of the branch or department in question and that does not violate the rights retained by the people.1 In Article I, the Constitution lists a number of powers that the Congress may exercise.2
The enumeration of congressional powers was adopted by the Convention after the delegates rejected more general grants of legislative power as overly vague. For example, when it was proposed to grant Congress all powers then exercised by the Confederation and “moreover to legislate in all cases to which the separate states are incompetent; or in which the harmony of the U.S. may be interrupted by the exercise of individual legislation,”3 Pierce Butler of South Carolina objected: “The vagueness of the terms rendered it impossible for any precise judgment to be formed.”4 In response, Nicholas Ghorum of Massachusetts explained: “The vagueness of the terms constitutes the propriety of them. We are now establishing general principles, to be extended hereafter into details which will be precise & explicit.”5 Fellow delegate from South Carolina John Rutledge renewed Butler’s objection “and moved … that a specification of the powers comprised in the general terms, might be reported.”6
The demand for specificity immediately followed the decision that morning (by a bare majority) of the Convention to allocate equal representation to every state in the Senate. As explained by Edmund Randolph of Virginia, “The vote of this morning (involving an equality of suffrage in 2nd branch) had embarrassed the business extremely. All the powers given in the Report from the Come. of the whole, were founded on the supposition that a Proportional representation was to prevail in both branches of the Legislature.”7 Though they had earlier supported the so called Virginia Plan putting sweeping powers in the hands of Congress, it has been suggested that Virginia and the other Southern states began pressing for a specificity of powers when they lost the assurance that they would dominate both houses of the future Congress.8 Whatever the motivation, the insistent demand eventually resulted in the list of enumerated powers drafted initially by the Committee of Detail.
The vote over the composition of the Senate was so disruptive to the prior stances of various delegates and states concerning the scope of federal powers that when, later the same day, Edmund Randolph urged adjournment because “we were unprepared to discuss this matter further,”9 more than one delegate took him to be calling for an adjournment of the entire Convention so that members might return home for consultation.10 By the next day, and after a meeting of delegates from the larger states to discuss the “proper steps to be taken in consequence of the vote in favor of an equal Representation in the [Senate],”11 the previously offered broad statement of congressional powers was characterized by Gouveneur Morris as “the abstract of the powers necessary to be vested in the general Government”12 and by his fellow Pennsylvanian James Wilson as “the general principle.”13 Roger Sherman read to the Convention an enumeration of powers he had drafted, though it was not approved (and Madison did not record its contents).
Significantly, weeks later, during its consideration of the precise enumeration of powers to be adopted, the Convention rejected the following language that the Committee on Detail proposed be added to the list:
and to provide, as may become necessary, from time to time, for the well managing and securing the common property and general interests and welfare of the United States in such a manner as shall not interfere with the Governments of individual States in matters which respect only their internal police, or for which their individual authorities may be competent.14
By making this proposal, the Committee confirmed that so general a power was not implicit in the rest of the enumeration already proposed. By rejecting it, the Convention affirmed what seems apparent: that Congress lacked a general power to legislate in the public interest and possessed only the enumerated “Powers herein granted”15 to it.
Ordinarily I place little emphasis on provisions that fail to be adopted. What matters is the original meaning of the text that was adopted. However, when what has been adopted is later argued to be the equivalent of something quite different that was explicitly rejected, the evidence becomes pertinent. In this case, the Convention was faced with a clear choice between a general grant of power to be exercised at Congress’s discretion and a specific enumeration by which Congress’s power was to be defined textually and thereby limited. It chose the latter.
What, then, is the connection between the enumeration of powers and the “propriety” of laws passed by Congress? According to the theory of legitimacy advanced in part I, in the absence of unanimous consent to the delegation of these powers, these powers must not violate the rights retained by those who never consented to their alienation. Of course, it may be that some powers granted Congress by the Constitution are proper and others not. Most of the powers on the original list are not problematic in this regard. They simply authorize the Congress to engage in certain activities, such as establishing post offices, or raising and supporting armies, that do not of themselves directly restrict the liberties of the people and therefore cannot violate their retained rights.
To completely evaluate the legitimacy of the Constitution would therefore require a detailed analysis of each of these powers and whether it violates the rights of nonconsenting persons. Though one of the most glaring defects of the Constitution was its failure to prohibit slavery in the states, the framers carefully avoided mentioning slavery by name or empowering Congress to enslave any person. Suppose, however, that it had. Although the exercise of such a power, if enumerated, would be legally “valid,” it would still be improper, as would any laws passed under its authority. Such laws would also be illegitimate as there would be no constitutional assurance that they are just and, as a consequence, such laws would not bind in conscience.
Despite this, courts are not empowered to disregard expressly enumerated powers, even those that violate the rights of the people. They are authorized only to interpret the meaning of these powers, and where this meaning is underdeterminate, to construe them in a manner that is consistent with original meaning and that would render their exercise as legitimate as possible. Assuming, arguendo, that the power to impose a tax on incomes authorized by the Sixteenth Amendment was unjust and improper, and consequently any laws passed to execute this power did not bind the citizenry in conscience, for better or worse, judges who swear to uphold the Constitution would not, in our system, be free to disregard this power or these laws. Such is the price we pay for the benefits of a written constitution. “Locking in” the good parts of the Constitution, it “locks in” any bad parts as well.16
Of course, it would be better for the sake of constitutional legitimacy if the powers granted to Congress were in fact proper. If the original meaning of a power does not violate the rights of nonconsenting persons, then the government need only show that a particular law lies within that delegated power to establish its propriety. Where the original meaning of a particular power is vague, a court can and should construe it to ensure it does not violate the liberty rights of persons who did not consent to the Constitution. A law justified in either manner would bind in conscience regardless of whether the Constitution also contained other enumerated powers, the original meaning of which improperly violates the rights retained by the people.
With this in mind, I now turn my attention to the enumerated power that has most often been used by Congress to restrict the liberties of the people: the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The evidence is overwhelming that the original meaning of this power renders it entirely consistent with the background rights retained by the people even in the absence of their consent. Adopting this interpretation would also narrow the legislative powers now claimed by Congress and accepted as constitutional by the courts.
The Commerce Clause raises three questions that must be answered by interpretation, construction, or both: What is the meaning of “Commerce”? What is the meaning of “among the several States”? And what is the meaning of “to regulate”? Some have claimed that each of these terms of the Commerce Clause had, at the time of the founding, both an expansive and a more limited meaning in common discourse.
“Commerce” might be limited to trade or exchange of goods, which would exclude, for example, agriculture, manufacturing, and other methods of production, or it might be interpreted expansively to refer to any gainful activity. “To regulate” might be limited to “make regular,” which would subject a particular type of commerce to a rule and would exclude, for example, any prohibition on trade as an end in itself, or it might be interpreted expansively to mean “to govern,” which would include prohibitions as well as pure regulations. “[A]mong the several States” might be limited to commerce that takes place between the states (or between people of different states), as opposed to commerce that occurs between persons of the same state. Or “among the states” might be interpreted expansively to refer to commerce “among [the people of] the States,” whether such commerce occurs between people in the same state or in different states.
Although it is often difficult to be sure of the meaning intended by a speaker from the context of a particular statement, there are good textual and contextual reasons to accept the narrower definition of each of these terms as their original meaning at the time of the founding. Because the meaning of the term “commerce” has been the most contentious, I will spend more time evaluating the evidence of its original meaning than that of the others.
The use of the term “commerce” in the drafting and ratification process was remarkably uniform. Indeed, I have found not a single example from the reports of these proceedings that unambiguously used a broad meaning of “commerce” and many instances where the context makes clear that the speaker intended a narrow meaning.
The Text. The first place to look for the original meaning of the text is the text itself, both the immediate text at issue and any other text in the Constitution that may shed light on the meaning of the relevant portion. Does the Constitution serve as its own dictionary on the meaning of a particular word?
When we consider the meaning of the term “commerce,” it is tempting to argue that “commerce” must mean trade, and not manufacturing or agriculture, because it would make no sense to refer to a congressional power “to regulate manufacturing with foreign nations” or “to regulate agriculture with Indian tribes.” This temptation should be resisted, however. If we plug the broadest alleged meaning of “commerce”—that is, “gainful activity”—into the sentence so it reads Congress shall have power “to regulate gainful activity with foreign nations,” the sentence makes perfect grammatical sense. True, so interpreted the clause would be referring only to that subset of gainful activity that can be conducted “with foreign nations” and “with the Indian tribes” and this would exclude manufacturing and agriculture. This narrowed application would not, however, be due to the narrow meaning of the word “commerce,” but would result from the interpretive effect of “with foreign nations” and “with Indian tribes.” In other words, the word “commerce” could still be used in its broadest sense in a manner that does grammatical justice to the sentence as a whole. Therefore, grammar alone does not tell us in which sense, narrow or broad, the word “commerce” is being used in the Commerce Clause, and we must look elsewhere for guidance.
A bit more assistance is provided by the way “commerce” is used in Article I, Section 9, which reads: “No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another.…” Here, as Richard Epstein has written, “[t]he term ‘commerce’ is used in opposition to the term ‘revenue,’ and seems clearly to refer to shipping and its incidental activities; this much seems evident from the use of the term ‘port.’ ”17 Moreover, unlike the Commerce Clause, we cannot here comfortably substitute “gainful activity” for the term “commerce.” “No Preference shall be given by any Regulation of gainful activity to the Ports of one State over those of another” is too awkward to be an accurate translation. But though the term “commerce,” standing alone in Article I, Section 9,18 is clearly being used in a much narrower sense than “any gainful activity,” we cannot be sure from this usage exactly what this sense is. For that we need to appeal to extrinsic evidence of original meaning that lies outside the four corners of the Constitution.
Contemporary Dictionaries. “Commerce” is defined in the 1785 edition of Samuel Johnson’s Dictionary of the English Language as “1. Intercourse; exchange of one thing for another; interchange of any thing; trade; traffick.” In contrast, “manufacture” is defined as “1. The practice of making any piece of workmanship. 2. Any thing made by art.” “Agriculture” is defined as “[t]he art of cultivating the ground; tillage; husbandry, as distinct from pasturage.” If Johnson is accurate, commerce referred predominantly to exchange or trade as distinct from the agricultural or manufacturing production of those things that are subsequently traded. Johnson’s definition of “commerce” is borne out by other dictionaries of the time.19 It is also the usage most closely associated with the drafting and adoption of the Constitution.
Constitutional Convention. In Madison’s notes for the Constitutional Convention, the term “commerce” appears thirty-four times in the speeches of the delegates.20 Eight of these are unambiguous references to commerce with foreign nations, which can consist only of trade. In every other instance, the terms “trade” or “exchange” could be substituted for the term “commerce” with the apparent meaning of the statement preserved. In no instance is the term “commerce” clearly used to refer to “any gainful activity” or anything broader than trade. One congressional power proposed by Madison, but not ultimately adopted, suggests that the delegates shared the limited meaning of “commerce” described in Johnson’s dictionary. Madison proposed to grant Congress the power “[t]o establish public institutions, rewards, and immunities for the promotion of agriculture, commerce, trades and manufactures,”21 strongly indicating that the members understood the term “commerce” to mean trade or exchange, as distinct from the productive processes that made the things to be traded.
The Federalist. Nor was this a secret usage confined to the Convention. In several of his contributions to The Federalist, ardent nationalist Alexander Hamilton repeatedly made clear the commonplace distinction between commerce, or trade, and production. In Federalist 11, he also explained the purpose of the Commerce Clause, a purpose entirely consistent with the prevailing “core” meaning of the term “commerce”:
An unrestrained intercourse between the States themselves will advance the trade of each by an interchange of their respective productions, not only for the supply of reciprocal wants at home, but for exportation to foreign markets. The veins of commerce in every part will be replenished and will acquire additional motion and vigor from a free circulation of the commodities of every part. Commercial enterprise will have much greater scope from the diversity in the productions of different States.22
In Federalist 12, he referred to the “rivalship,” now silenced, “between agriculture and commerce,”23 while in Federalist 17, he distinguished between the power to regulate such national matters as commerce and “the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation.”24 In Federalist 21, Hamilton maintained that causes of the wealth of nations were of “an infinite variety,” including “[s]ituation, soil, climate, the nature of the productions, the nature of the government, the genius of the citizens, the degree of information they possess, the state of commerce, of arts, of industry.”25 In Federalist 35, he asked, “Will not the merchant understand and be disposed to cultivate, as far as may be proper, the interests of the mechanic and manufacturing arts to which his commerce is so nearly allied?”26
In none of the sixty-three appearances of the term “commerce” in The Federalist is it ever used to refer unambiguously to any activity beyond trade or exchange. At the time of the framing, then, even for a proponent of broad national powers such as Hamilton, the term “commerce” in the Constitution referred to trade or exchange, not to the production of items to be traded, and certainly not to all gainful activity. Even later, with the contentiousness of the Constitution’s adoption behind him, Hamilton’s usage did not change. As secretary of the treasury, Hamilton’s official opinion to President Washington advocating a broad congressional power to incorporate a national bank repeatedly referred to Congress’s power under the Commerce Clause as the power to regulate the “trade between the States.”27
Ratification Conventions. Having examined every use of the term “commerce” that appears in the reports of the state ratification conventions, I found that the term was uniformly used to refer to trade or exchange. I found no example where it unambiguously referred to all gainful activity. Of course, people used the word “commerce” to convey its accustomed meaning, so they neither defined it nor often gave contextual clues as to what it meant to them. Nevertheless, some public speeches make clear that “commerce” was used as a synonym for trade or exchange—and did not include agriculture, manufacturing, or other business; every speech is consistent with such a narrow meaning (though two statements can be misinterpreted as connoting a broader meaning of “commerce”). I will present this evidence state by state.
In the records of the Massachusetts convention, the word “commerce” is used nineteen times—every use consistent with its meaning trade, mostly foreign trade; and no use clearly indicating a broader meaning. The most explicit distinction was made by Thomas Dawes, a prominent revolutionary and legislator, who began his discussion on the importance of the national taxation powers. “We have suffered,” said he, “for want of such authority in the federal head. This will be evident if we take a short view of our agriculture, commerce, and manufactures.”28 He then expounded at some length, giving separate attention to each of these activities and the beneficial effect the Constitution would have on them. Under the heading of “commerce,” he referred to “our own domestic traffic that passes from state to state.”29
Only two other speakers in the Massachusetts convention implicitly distinguished between “commerce” and other economic activities. Charles Turner referred to “the deplorable state of our navigation and commerce, and various branches of business thereon dependent.”30 Making much the same point, James Bowdoin argued that the existing confederation lacked the power to retaliate against foreign nations who placed restrictions on American exports:
Hence a decrease of our commerce and navigation, and the duties and revenue arising from them. Hence an insufficient demand for the produce of our lands, and the consequent discouragement of agriculture. Hence the inability to pay debts, and particularly taxes, which by that decrease are enhanced. And hence, as the necessary result of all these, the emigration of our inhabitants.31
While each of these further consequences flowed from a decrease of “our commerce and navigation,” they were not the same thing as commerce.
In the few fragments that survive of the Maryland, Connecticut, and New Hampshire ratification debates, the term “commerce” is mentioned only once. In the opening address to the Connecticut convention, Oliver Elsworth referred to the Swiss, who “[t]ill lately,” he said, “had neither commerce nor manufactures. They were merely a set of herdsmen.”32 By contrast, in the more extensive records of the New York convention, the term appears thirty times. Governor Clinton referred to “[t]he situation of [each state’s] commerce, its agriculture, and the system of its resources.”33 Another delegate questioned the need for the new central government by noting the rapid economic progress: “How [the country’s] agriculture, commerce, and manufactures have been extended and improved!”34
The New York delegate who repeatedly made the clearest distinction between commerce and other economic activity was Alexander Hamilton. As part of a lengthy speech, he observed: “The Southern States possess certain staples,—tobacco, rice, indigo, &c.,—which must be capital objects in treaties of commerce with foreign nations.”35 The same distinction is implicit in his denial that the regulation of commerce was outside the competency of a central government: “What are the objects of the government? Commerce, taxation, &c. In order to comprehend the interests of commerce, is it necessary to know how wheat is raised, and in what proportion it is produced in one district and in another? By no means.”36 Later, in defending the power of direct taxation, Hamilton predicted that in its absence, the “general government … will push imposts [on our commerce] to an extreme.”37 As a result, “[o]ur neighbors, not possessed of our advantages for commerce and agriculture, will become manufacturers: their property will, in a great measure, be vested in the commodities of their own productions; but a small proportion will be in trade or in lands. Thus, on the gentleman’s scheme, they will be almost free from burdens, while we shall be loaded with them.”38
Although there is no example in New York of a clear use of “commerce” in any sense broader than trade or exchange, two statements might mistakenly be so interpreted. In one, Hamilton argued that “one man can be as fully acquainted with the general state of the commerce, manufactures, population, production, and common resources of a state, which are the proper objects of federal legislation.”39 Although here, as elsewhere, he uses the term “commerce” narrowly, this passage might be read to indicate that the entire list of activities fell within the power of Congress to regulate commerce among the states. Taken in context, this would be a misreading. Hamilton is contending here, as he did throughout his career and as did many others, that the advancement of all these economic activities was the proper goal of national legislation. He is not speaking of the specific powers granted to Congress by the Constitution to pursue these goals, such as the power of taxation and the power to regulate commerce with foreign nations or among the states.40
Referring to the same problem of knowledge, Anti-Federalist Melancton Smith asserted:
To understand the true commercial interests of a country, not only requires just ideas of the general commerce of the world, but also, and principally, a knowledge of the productions of your own country, and their value, what your soil is capable of producing, the nature of your manufactures, and the capacity of the country to increase both.41
Although this statement employs the term “commercial interests” broadly, it still uses the narrow conception of “commerce” as distinct from “productions” and “manufactures” as included among these “commercial” interests.
Smith’s statement is especially useful because some of the quotations employed by those who have claimed a broader meaning for the term “commerce” actually refer to “commercial interest,” not “commerce.”42 By explicitly using “commercial interests” to convey a broader meaning than the term “commerce,” we can see that statements using the phrase “commercial interest” should not be viewed as synonymous with “commerce” itself. The original meaning of the regulatory powers granted to Congress might have been broader had Article I, Section 8 granted it the power “to regulate the commercial interests of the States” rather than the power to regulate only “commerce.”43
The term “commerce” appears only eight times in the report of the Pennsylvania ratification convention. All uses are consistent with the narrow meaning of “commerce”; none clearly uses a broader meaning. Only three uses add any context to the term, and all are by James Wilson, a member of the Constitutional Convention. Wilson referred to “the objects of commerce,”44 suggesting items being traded. Later he asked, “Is it not an important object to extend our manufactures and our commerce? This cannot be done, unless a proper security is provided for the regular discharge of contracts. This security cannot be obtained, unless we give the power of deciding upon those contracts to the general government.”45 His most revealing comment suggesting a strong distinction between “commerce” and other economic activities was this:
Suppose we reject this system of government; what will be the consequence? Let the farmer say, he whose produce remains unasked for; nor can he find a single market for its consumption, though his fields are blessed with luxuriant abundance. Let the manufacturer, and let the mechanic, say; they can feel, and tell their feelings. Go along the wharves of Philadelphia, and observe the melancholy silence that reigns.… Let the merchants tell you what is our commerce.46
In the North Carolina debates, “commerce” is mentioned eighteen times (including two instances in proposed amendments). As elsewhere, there are no clear uses of it in any sense broader than “trade” or “exchange” and a few clear examples of its use in the narrow sense in speeches by William Davie. Davie defined the “general objects of the union” to be “1st, to protect us against foreign invasion; 2nd, to defend us against internal commotions and insurrections; 3rd, to promote the commerce, agriculture, and manufactures, of America.”47 Later, he explained why the regulation of commerce, though distinct from agriculture and manufacturing, promoted them: “Commerce, sir, is the nurse of both. The merchant furnishes the planter with such articles as he cannot manufacture himself, and finds him a market for his produce. Agriculture cannot flourish if commerce languishes; they are mutually dependent on each other.”48 Davie also distinguished between the interests “of agriculture and commerce” and how the Constitution would protect just claims of “the merchant or farmer.”49 Merchants were those who bought and sold goods; it was they, not farmers or artisans, who engaged in commerce.
In the reports of the South Carolina convention, the word “commerce” is used twenty-six times. Charles Pinckney, who had been a delegate to the Constitutional Convention, equated “the regulation of commerce” and mere “privileges with regard to shipping,” when he asked, “[i]f our government is to be founded on equal compact, what inducement can [the Eastern states] possibly have to be united with us, if we do not grant them some privileges with regard to their shipping?”50 Later, he distinguished between those “people [who] are employed in cultivating their own lands” and “the rest [who are] in handicraft and commerce.”51 And he immediately expanded upon this by discussing the different “classes” of society comprising the “commercial men,” the “professional men,” those engaged in “the mechanical,” and the “landed interest—the owners and cultivators of the soil.”52 Although Pinckney contended that all the other classes should be subservient to the promotion of the last, he defended commerce from the criticism that it was “generally cheating.”53 No other use of the term in South Carolina connoted a broader meaning of “commerce”; all uses were entirely compatible with the terms “trade” or “exchange.”
Virginia wins the prize for the most mentions of the word: seventy-four. Here, as elsewhere, there is not a single instance of “commerce” being used unambiguously in the broader sense. To the contrary, the most striking evidence is the dominance of a conception of commerce that is even narrower than “trade” or “exchange”—also manifested by Pinckney’s reference in the South Carolina debates to “privileges with regard to shipping.” In Virginia, I count at least seventeen references that link “commerce” in some way to ports, shipping, navigation, or the “carrying trades.” In other words, on these occasions, the term “commerce” is limited to conveying or transporting the articles of trade, rather than to the entire act of trading.54
For example, Richard Henry Lee asked those who doubted the need for the Constitution to “go to our seaports; let him see our commerce languishing—not an American bottom to be seen.”55 Edmund Randolph urged members to “[c]ast your eyes to your seaports: see how commerce languishes.”56 He observed that “Virginia is in a very unhappy position with respect to the access of foes by sea, though happily situated for commerce,”57 and that “[a]s it is the spirit of commercial nations to engross as much as possible the carrying trade, this makes it necessary to defend our commerce.”58 Like Lee and Randolph, Francis Corbin also referred to those ports
where we had every reason to see the fleets of all nations, he will behold but a few trifling little boats; he will every where see commerce languish; the disconsolate merchant, with his arms folded, ruminating, in despair, on the wretched ruins of his fortune, and deploring the impossibility of retrieving it.59
Future Chief Justice John Marshall asked whether “the Algerines … and every other predatory or maritime nation, [cannot] pillage our ships and destroy our commerce, without subjecting themselves to any inconvenience?”60 Madison asserted that “American vessels, if they can do it with advantage, may carry on the commerce of the contending nations.”61 William Grayson stated that the riches of all those “maritime powers of Europe … come by sea. Commerce and navigation are the principal sources of their wealth.”62 And, echoing Marshall, James Innes asked, “Is it not in the power of any maritime power to seize our vessels, and destroy our commerce, with impunity?”63
I do not present these quotations to show that the original meaning of the term “commerce” was limited to shipping. Surely shipping was so closely identified with commerce because it was at that time the indispensable means for the movement of goods. One could easily extend this preoccupation with what is now called the “channels and instrumentalities” of commerce to railroads, canals, and air transport. But this close connection reinforces the narrow meaning of commerce and the purpose for granting Congress the power to regulate it. It also explains why the earliest cases involving the commerce power had to do with boats.64
Moreover, these were not the only references to “commerce” in Virginia. Others of the sort I have canvassed from elsewhere appear here as well. Edmund Pendleton, for instance, viewed “commerce” as the means by which “the people may have an opportunity of disposing of their crops at market, and of procuring such supplies as they may be in want of.”65 So synonymous was “commerce” with “trade” that William Grayson worried that “the whole commerce of the United States may be exclusively carried on by merchants residing within the seat of government.”66 He surely could not have been including agriculture or manufacturing in his definition of commerce.
Despite the strength and consistency of all this evidence, it is also true that persons participating in the process of drafting and ratifying the Constitution frequently used the phrase “trade and commerce.”67 In the absence of the evidence already presented, this might suggest that these terms were not identical. On the other hand, if “commerce” is given its broadest connotation as “gainful activity,” it would include “trade” within its meaning, and this phrase would still make little sense. Instead, it appears that the phrase “trade and commerce” was something of a couplet like “cease and desist” or, as they say in Disney World, a “full and complete” stop. The couplet “trade and commerce” refers to a single activity that could be, and usually was, called either trade or commerce. Indeed, on two occasions, state convention delegates referred to the power to “regulate trade” rather than to the power to regulate “commerce.”68
Should there be any doubt about my interpretation of these statements, go back to the quotations in which there is a context provided and replace the term “commerce” with the term “gainful activity.” All of these sentences would be rendered incoherent. Nor are these statements to be dismissed because they occur in partisan debate. Remember, we are not asking what purposes or intentions these delegates are expressing. We are just asking how they used the term “commerce.” So far as these records permit us to judge, both proponents and opponents of the Constitution used the term in the same way.
From these findings, we can conclude that if anyone in the Constitutional Convention or the state ratification conventions used “commerce” to refer to something more comprehensive than “trade” or “exchange,” either they failed to make explicit that meaning or their comments were not recorded for posterity. The surviving evidence on this point is entirely consistent and confirms the observation made by Madison late in his life that “[i]f, in citing the Constitution, the word trade was put in the place of commerce, the word foreign made it synonymous with commerce. Trade and commerce are, in fact, used indiscriminately, both in books and in conversation.”69
General Usage: The Pennsylvania Gazette. One practical problem of establishing the historical meaning of a particular term is the inability to discern whether particular examples are aberrations or represent the mainstream use of a term. Language, after all, is susceptible of many uses, some commonplace, others idiosyncratic, metaphoric, or poetic. Until recently it was difficult to know whether the evidence of usage offered by a particular historian was typical or cherry-picked.70 For this reason, I surveyed every use of the term “commerce” in the Constitutional Convention, Ratification Debates, and The Federalist. I did not expect usage to be uniform, but hoped rather to be able to detect what usage was normal and what usage was aberrational. Hence my surprise at finding that usage was consistently narrow where the context supplied meaning.
Some may respond that the general public would have taken the word in its broader sense notwithstanding how participants in the drafting or ratification processes might have used the term. They might claim that “many of the citizens who ratified the Constitution likely understood ‘commerce’ in this larger sense.”71 To assess this claim, I designed a survey of every use of the term “commerce” in the Pennsylvania Gazette that appeared from 1728 to 1800.72 The Pennsylvania Gazette, which from 1729 to 1766 was published by Benjamin Franklin,73 “in its essential character, although not in its unusual longevity, … was representative of the great majority of the newspapers of the provincial period.”74 If the term “commerce” had a readily understood broad meaning, one would expect it to have made its appearance in this typical newspaper whose publication spanned the colonial and postcolonial period. If the term “commerce” was indeed ambiguous, one could detect which of the multiple meanings of “commerce” was most common.
From 1728 to 1800, the term “commerce” appeared 1,594 times.75 The earliest use of the term appeared in 1728 and referred to “commerce” as “the Affairs of Merchandize.”76 One of the latest in 1798 refers to a 1765 caricature in which the messenger god Mercury was used to signify commerce. A 1787 entry defines the term explicitly: “[B]y commerce I mean the exports as well as the imports of a country.…”77 A 1773 entry notes the existence of “the Royal College of Physicians, and the Society for the Encouragement of Arts, Manufactures and Commerce.”78 But these are mere pinpricks of data.
As with the data I reported from the drafting and ratification proceedings, the term “commerce” was routinely used to refer to trade or exchange, including shipping. Indeed, so identified was “commerce” with shipping that ninety-nine of the references were to ships named Commerce. Commerce was also routinely distinguished from agriculture and manufacturing. As shown by the passage from the January 13, 1790, issue at the head of this chapter, no redundancy or “couplet” could possibly have been intended by the use of this triad. As with the evidence surrounding the drafting and ratification of the Constitution, each is considered a distinct activity. With these data, as before, commerce is typically associated with merchants, which should come as no surprise since both terms share the same common root, “merci” or merchandise. For example, “As a Merchant, it was thought that no Person amongst us understood Commerce in general, and the trading Interests of this Province in particular, better than he.…”79
Even those claiming that “commerce” had a broad meaning agree it had a narrow meaning as well. For this reason, it was necessary to survey every use of the term to see how often, if ever, a broad meaning was conveyed. If this occurred only rarely, then the public would not have been deceived by the framers’ decision to employ “commerce” to convey a narrow meaning. As before, the evidence of original meaning is overwhelming. A reasonable speaker of English would have understood the term “commerce” in the Commerce Clause in its narrow sense.
The Marshall Court. Thirty-five years after ratification, in the 1824 case of Gibbons v. Ogden,80 John Marshall was called upon to decide whether navigation was included in the power of Congress to regulate commerce among the states. He held that it was. From the perspective of original intent, this holding is unremarkable. The above sources, and others unmentioned,81 make clear the intention to subject shipping and navigation to the regulation of Congress. The interpretive challenge is in determining exactly how, if at all, navigation is included in the original meaning of the text. Was it a part of the term “commerce” itself? Or was the regulation of navigation incidental to the regulation of commerce and therefore authorized by the Necessary and Proper Clause? Then there is always the possibility that the framers used words the original meaning of which did not accurately express their intentions, and so they failed to include a power over “navigation” though they believed they had.
Although the sources I have examined do not provide indisputable answers to these questions, on balance, I think navigation appears to be included within the meaning of the term “commerce” because of its intimate connection to the activity of trading. Indeed, the etymology of the term “commerce” is “with” (com) “merchandise” (merci),82 a phrase that could accurately be applied to the “carrying trade,” which is how the object of navigation laws was frequently described. Perhaps the strongest evidence that “commerce” included navigation is in Article I, Section 9, where Congress is forbidden to enact any “Regulation of Commerce” that gives preference “to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.” Although regulations concerning imports that might favor one port over another could be considered simply rules governing trade or exchange, laws governing the movement of vessels, the enactment of which are partially restricted by this clause, would appear to be rules concerning navigation or the transportation of articles of commerce.
In the Philadelphia convention, the extensive debate over whether “navigation acts” should require a supermajority occurred explicitly in the context of the power to regulate commerce.83 For instance, John Rutledge of South Carolina contended that “[i]t did not follow from a grant of the power to regulate trade, that it would be abused. At the worst a navigation act could bear hard a little while only on the S[outhern] States.”84 The sort of navigation act contemplated here was an “act encouraging American bottoms & seamen”85 that would incidentally raise the price of freight86 and so impact adversely exporting interests.
Moreover, there is a hint that the term “commerce” included navigation in the fact that—like “commerce and trade”—the couplet “commerce and navigation” appears, by my count, four times during the ratification debates, twice in Massachusetts and twice in Virginia.87 On two of these occasions, “commerce and navigation” was distinguished from “various branches of business thereon dependent”88 as well as specifically from agriculture.89 Even expanded to include navigation or transportation, then, commerce is still distinguishable from production. If the public at the time of ratification understood the term “commerce” in the Constitution to include trade, exchange, and navigation, then that is its original meaning.
On the other hand, though enactment of “navigation laws” was widely thought to be within the power of Congress, several statements suggest that such laws were considered by some at least to be distinct from regulations of commerce and that the term “navigation” was neither synonymous with nor subsumed within the term “commerce.” The Virginia and North Carolina ratification conventions formally proposed that the Constitution be amended to state “That no navigation law, or law regulating commerce, shall be passed without the consent of two thirds of the members present, in both houses.”90 This proposed amendment both assumes that Congress has power to pass navigation laws and distinguishes such laws from regulations of commerce.
If this and other like evidence is accepted, the admitted power to pass navigation laws is most accurately conceived as an implied power that was embraced by the Necessary and Proper Clause. In which case, the congressional power to regulate transportation is proper only insofar as it is necessary to effectuate the regulation of trade and exchange between state and state. Even statements warmly supporting the enactment of navigation laws suggest that such laws were thought a necessary means to protect commerce rather than the regulation of commerce itself. As Edmund Randoph observed to the Virginia convention:
As it is the spirit of commercial nations to engross as much as possible the carrying trade, this makes it necessary to defend our commerce. But how shall we compass this end? England has arisen to the greatest height, in modern times, by her navigation act, and other excellent regulations. The same means would produce the same effects.91
But even this statement could be read as including navigation in the definition of “commerce.”
In Gibbons, Marshall reached his conclusion that navigation was included in the term “commerce” by relying on the definition of “commerce” as “intercourse.”92 This was indeed the first definition of “commerce” offered in Johnson’s dictionary. Johnson, however, defines “intercourse” as “1. Commerce; exchange” and “2. Communication: followed by with,” so it is not at all clear that the meaning of “intercourse” (especially when not “followed by with”) was itself much broader than trade and exchange. Moreover, it is difficult to imagine that John Marshall, much less the founders, believed that the term “commerce” in the Constitution embraced noncommercial intercourse or every form of intercourse. Although the term “intercourse” appears sixty-three times in the records of the ratification debates (sometimes with a broader meaning), on each of the six times it is used in conjunction with “commercial,” it is a clear reference to foreign trade—though these examples of usage might also be broad enough to include transport for purposes of trade.93 And while “intercourse” sometimes had a broader meaning, we must never forget that the Constitution speaks of “commerce,” not the “regulation of intercourse” among the states.
The Progressive Era Court. By the time of the Progressive Era, the meaning of commerce had not changed and the Supreme Court accepted the limited conception of commerce as “trade and exchange.” As early as the 1895 case of United States v. E.C. Knight Co.94 and as late as the 1936 case of Carter v. Carter Coal Co.,95 the Court drew a distinction between “production”—such as manufacturing, agriculture, or mining—and “commerce” or trade in the things produced. As Chief Justice Fuller wrote in E.C. Knight: “Commerce succeeds to manufacture, and is not a part of it.… The fact that an article is manufactured for export to another State does not of itself make it an article of interstate commerce.”96 And in Carter Coal, Justice Sutherland defined “commerce” as “the equivalent of the phrase ‘intercourse for the purpose of trade.’ ”97 “Mining” he explained, “brings the subject matter of commerce into existence. Commerce disposes of it.”98 Sutherland’s definition harks back to Marshall’s use of “intercourse” without the unwarranted suggestion that “commerce” embraces every form of intercourse. It also seems a reasonable definition of the term “commercial intercourse.”
With this conception of “commerce,” the power of Congress to regulate the economy was sharply restricted. It is no surprise, therefore, that these decisions were roundly condemned by political and academic proponents of national control of the entire economy.99 As was to be expected, the Court was criticized for its failure to acknowledge that the meaning of the Constitution must evolve to meet changing circumstance.100 More surprisingly, however, in light of the historical evidence presented here, the Court was also harshly criticized for distorting the original meaning of “commerce.”
In their influential little book, The Power to Govern: The Constitution—Then and Now, published in 1937, Walton Hamilton and Douglass Adair castigate the Court for imposing its conception of commerce on the founding generation in defiance of the historical understanding. “A narrowing of the concept ‘commerce,’ ” they confidently assert, “is at odds with [the Fathers’] contemporary usage.”101 But though they pick quotations from the ratification debates reflecting the demand for stronger national governance, they reveal little of the evidence of usage also to be found there102 or in the notes of the Philadelphia convention that I have summarized here. Instead, they rely primarily on five pages of quotations from a pamphlet by Tench Coxe, written before the Constitutional Convention, in which he argues for a sweeping national control over the economy, and on Hamilton’s 1791 Report on Manufactures, which Coxe is reputed to have helped draft.
Hamilton, it will be recalled, proposed to the Constitutional Convention a plan of government in which the legislature would have the power to pass all laws “whatsoever”103 subject only to a negative by the president. His plan was never considered and, as we have seen, a general grant of powers to the Congress was rejected by the Convention in favor of an enumeration. For the rest of his career, Hamilton never wavered in his efforts on behalf of expanding the power of the national government. Despite this, when he wrote as Publius in The Federalist, when he spoke at the New York ratification convention, and in his opinion supporting the constitutionality of a national bank, Hamilton used the word “commerce” in its ordinary narrow sense.
In 1953, this originalist criticism of the Supreme Court’s definition of “commerce” during the Progressive Era was picked up and greatly expanded by William Crosskey in his massive book, Politics and the Constitution in the History of the United States.104 Like Adair and Douglass, Crosskey deliberately avoids consulting the Philadelphia or state conventions for evidence of usage, focusing instead on an extensive canvass of pre-Revolutionary and pre-Constitutional sources, such as John Dickinson’s 1765 pamphlet, The Late Regulations Respecting the British Colonies Considered.105 “The samples of word-usage and juristic and political discussion … will … all be drawn … from sources not connected with the Constitution.”106 Indeed, Crosskey claims this omission as a virtue:
For, by using such materials, a dictionary can be made which will not, it is conceived, be open to the many natural suspicions that arise from the known or suspected political bias of speakers and writers on the Constitution. And in consequence of this, it should lead to constitutional conclusions having a very high and singular cogency.107
Unfortunately, Crosskey omits to tell readers how convenient to his thesis was his methodological choice since he remains silent on how the excluded sources differ from the evidence he emphasized. Moreover, when considering evidence of word usage, as Crosskey purports to do, this omission was completely unnecessary because these words were used to convey the same meaning by both proponents and opponents of the Constitution.
It is striking the degree to which these authors, whose tone is nothing if not self-righteous toward those who do not share their views, completely ignore the evidence of usage that the records of the drafting and ratification process reveal. I do not dispute that many before and after the Constitution strongly favored a national government powerful enough to govern all “gainful activities.” I dispute only, on the strength of the evidence of usage presented here, that a government of so unlimited a power was adopted in 1789. Owing to their highly selective treatment of the evidence, neither of these works calls this conclusion into serious question.
Even if “commerce” had a meaning as broad as any “gainful activity,” the implications of this may be less than is commonly believed. The reach of even a broad conception of “commerce” is confined by the meaning of the rest of the clause—that is, by the phrases “among the several States” and “to regulate.”
The Text. Textual analysis of the Commerce Clause strongly supports a conclusion that the phrase “among the several States” refers to “between people of different states.” If this phrase included commerce between people of the same state that takes place wholly within a single state, the Commerce Clause would then embrace all commerce. This interpretation would render the phrase “among the several States” superfluous. The only reason for listing the three commerce powers of Congress is to exclude some type of commerce from the power of Congress, and the only commerce that is excluded is commerce that occurs within a single state. Therefore, barring some extrinsic evidence that suggests another plausible possibility, we can safely conclude that the original meaning of “among the several States” to those who used and heard this phrase in the Constitution was commerce that occurred, in Hamilton’s words, “between the States.”108 As Chief Justice Marshall wrote in Gibbons v. Ogden:
The enumeration presupposes something not enumerated; and that something, if we regard the language or the subject of the sentence, must be the exclusively internal commerce of a State.… The completely internal commerce of a State, then, may be considered as reserved for the State itself.109
Other evidence of usage confirms this conclusion.
The Federalist. In Federalist 42, Madison clarifies that the purpose of the power to regulate commerce “among the several States” was to manage trade between people of different states and facilitate the essential power of regulating trade with foreign nations:
The defect of power in the existing Confederacy to regulate the commerce between its several members is in the number of those which have been clearly pointed out by experience.… [W]ithout this supplemental provision, the great and essential power of regulating foreign commerce would have been incomplete and ineffectual. A very material object of this power was the relief of the States which import and export through other States from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former.110
In no way would such a power reach purely intrastate activities, whether gainful or not, a point that he emphasized again in Federalist 45:
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.111
Trade “between the States” was a usage that Hamilton would continue to employ when referring to the Commerce Clause while advocating, in his opinion to President Washington, that Congress had the power to incorporate a national bank.
Both the meaning of the term and the well-known purpose of the clause were made clear by Hamilton in The Federalist. Under the Articles of Confederation, the states had “fettered, interrupted and narrowed”112 the flow of commerce from one state to another by protective legislation of all sorts.
Apart from the need to negotiate treaties of commerce with other nations, the principal purpose for adopting a new Constitution was to deprive the states of the power to interfere with productive exchanges.
An unrestrained intercourse between the States themselves will advance the trade of each by an interchange of their respective productions, not only for the supply of reciprocal wants at home, but for exportation to foreign markets. The veins of commerce in every part will be replenished and will acquire additional motion and vigor from a free circulation of the commodities of every part. Commercial enterprise will have much greater scope from the diversity in the productions of different States. When the staple of one fails from a bad harvest or unproductive crop, it can call to its aid the staple of another. The variety, not less than the value, of products for exportation contributes to the activity of foreign commerce. It can be conducted upon much better terms with a large number of materials of a given value than with a small number of materials of the same value, arising from the competitions of trade and from the fluctuations of markets.113
The Ratification Debates. At the New York convention, John Lansing, who had been a delegate in Philadelphia, praised the Commerce Clause and complained about “[t]he languishing situation of our commerce [that] has also been attributed to the impotence of Congress.”114 He then asserted that “all the states, excepting two, had passed laws to enable Congress to regulate commerce, and that those two were not indisposed to vest that power.”115 Lansing was referring here to the 1784 Act of Congress asking the states for the power to regulate the trade between different states.116 In no way did this proposed act reach commerce or trade that lay solely within any state.117
Finally, the silence from the Southern states during ratification supports this interpretation. It can be asserted with certainty that the Southern states would never have ratified the Constitution if the power to regulate commerce among the states included the power to regulate the slave trade within a particular state, which was unquestionably and reprehensibly thought to be a form of commerce.118 In my view, asking whether a particular meaning would have been agreed to by one group or another is not the best indication of the original meaning of any constitutional provision. At issue should be the public meaning of the term to which they did agree. Nonetheless, when supported by other types of evidence of original meaning, the fact that the slave trade was considered outside the power of Congress to regulate commerce “among the several States” bolsters our understanding of that phrase’s public meaning.
Other Commentators. Although this interpretation of “among the states” has been contested, most vigorously by William Crosskey,119 there remains a scholarly and judicial consensus in favor of this as the original meaning.120 Consistent with the scheme of federalism that motivated the granting to Congress of a power to regulate commerce among the states, trade that occurs wholly within a state was not commerce “among the states” and, therefore, the regulation of such commerce was not among the powers of Congress. As St. George Tucker explained: “The constitution of the United States does not authorise congress to regulate, or in any manner to interfere with, the domestic commerce of any state.”121 Tucker offered as, an example of such intrastate commerce, “a vessel wholly employed in that domestic commerce, seems not to be subject to the control of the laws of the United States.”122 Tucker allowed that federal law could punish or seize the vessels of persons who gave “aid or assistance to any fraudulent commerce, either with foreign parts, or between the states.”123 Congress “may also prescribe, or limit the terms and conditions, upon which vessels may be permitted to trade with foreign parts, or with other states.”124 Nevertheless, citing the Tenth Amendment, Tucker concluded that Congress, under its power to regulate commerce among the states, has “no constitutional right to control the intercourse between any two or more parts of the same state.”125
Adopting the narrower meaning of “among the several States” also reduces the significance of whether “commerce” is interpreted broadly to include any gainful activity or limited only to trade or exchange. For if Congress can regulate only gainful activity that takes place between people of different states, even the broader definition of commerce will not encompass much more than trade or exchange.
Thus, supposing the Progressive Era courts were wrong to exclude manufacturing, agriculture, and mining from the category of “commerce,” they were onto something nonetheless. It is hard even to imagine either a good being manufactured or a crop being grown “among the states” or “between state and state” unless the factory or farm physically straddles a state line. Of course, when a company that manufactures goods or raises crops then sells them or transports them for gain from one state to another, this aspect of its operation is commerce “among the states” under even the narrow definition of commerce and is subject to federal regulation. Thus, ordinarily, manufacturing, agriculture, and mining—even when “commercial” in the broadest sense—do not occur between states and therefore are outside the regulatory powers of Congress.
I say “ordinarily” because one can imagine industrial, agricultural, or mining processes which, though otherwise within a state, extend beyond that state by emitting harmful substances into the air or water that are carried into neighboring states, as one can imagine a person standing in Indiana and shooting a bullet into Illinois. Therefore, just as the regulation of a shipment of products to other states is “proper” under the Commerce Clause, the “commercial” production of harmful emissions that cross state lines would be included under the broader definition of “commerce,” even though manufacturing, agriculture, and mining usually occur within a single state.126
In Gibbons, John Marshall contended that “among the states” meant “concerns more states than one”127 and his formulation has been accepted by courts ever since.128 This substitution of language has been used to justify extending the power of Congress from regulating commerce that actually moves between the states to commerce that occurs within a state and has external effects.
The Commerce Clause grants Congress the power to regulate commerce that occurs “among the several States,” which we have seen meant “between state and state” or between persons in one state and persons in another. It does not speak of a power to regulate commerce that “concerns” more than one state, or even commerce between persons of the same state that somehow “concerns” other states. By the same token, the Commerce Clause also empowers Congress to regulate commerce “with foreign Nations, … and with the Indian Tribes.” It does not empower Congress to regulate commerce that concerns or affects foreign nations or that concerns or affects Indian tribes.129
Marshall’s formulation has improperly permitted the expansion of the power to regulate commerce beyond that which actually crosses state lines. The interpretive issue is not whether it might be “necessary and proper” to regulate either noncommercial actions or all intrastate commerce that has a direct impact upon commerce that does cross state lines. The issue here is whether Congress’s power under the Commerce Clause extends to commerce that occurs wholly within one state but still can be said to “concern” more states than one. The original meaning of “among the several States” provides no warrant for this extension of power.
Determining the constitutionality of a particular regulation of activity that is not “commerce … among the several States”—that is, trade between state and state—requires an assessment not only of the Commerce Clause but of the Necessary and Proper Clause as well. As we have seen, the original meaning of the Necessary and Proper Clause requires a showing of means-end fit, whereas “propriety” requires a showing that Congress is not asserting its power over interstate commerce as a pretext for assuming powers it was not delegated, such as a power over intrastate conduct.
Dictionaries. Samuel Johnson defines “to regulate” as “1. To adjust by rule or method.… 2. To direct.” In other words, the term “to regulate” means “to make regular.” The power to regulate is, in essence, the power to say, “if you want to do something, here is how you must do it.” For example, the making of contracts and wills is “regulated” by the law of contracts and estates. To make an enforceable agreement for a sale of goods over five hundred dollars requires that the agreement be in writing. To make a will requires a specified number of witnesses to one’s signature. These requirements regulate—or “make regular”—the making of contracts and wills by subjecting them to a rule or method. The power to regulate the making of contracts or wills is not the power to prohibit such activity, even though contracts or wills that do not conform to the regulation are necessarily unenforceable. A pure regulation of commerce, then, is a set of rules that tells people, “If you want to trade or exchange with others, here is how you must go about it.”
In contrast, Johnson defines “to prohibit” as “1. To forbid; to interdict by authority.… 2. To debar; to hinder.” Forbidding, interdicting, and hindering are not the same thing as regulating, or “making regular,” or adjusting by rule or method. It does not tell you how to do something, but instead tells you that you may not do it at all. Moreover, in Johnson’s dictionary, neither “to regulate” nor “to prohibit” is defined in terms of the other; each seems quite distinct. Indeed, both terms appear in the Constitution and the context in which they are used suggests that their meanings differ sharply.
Usage in the Constitution. Apart from the Commerce Clause, the terms “regulate” or “regulation” appear seven times in the body of the Constitution and three times in the amendments proposed by Congress to the states, though only once in the Bill of Rights as ratified. The term “prohibit” is used once in the body of the Constitution and twice in the Bill of Rights. Article I, Section 4 gives Congress the power to “alter such Regulations” on the time, place, and manner of elections prescribed by state legislatures. Clearly, the power to regulate or facilitate elections is not the power to prohibit them. Article I, Section 8 gives Congress the power “[t]o … regulate the Value” of money, not to prohibit the use of money or to “regulate” its value to zero.
In two places the Constitution makes an explicit distinction between prohibition and regulation. Article III, Section 2 gives the Supreme Court appellate jurisdiction, as to both law and fact, “with such Exceptions, and under such Regulations as the Congress shall make.” By distinguishing “exceptions” from “regulations,” the Constitution distinguished Congress’s power to regulate or subject to rule the Court’s appellate jurisdiction and its power to prohibit the Court from exercising its jurisdiction by making “exceptions” thereto. If the power to make regulations included the power to prohibit that which is regulated, there would have been no need to give explicit power to Congress to make “exceptions” to appellate jurisdiction.
That the Constitution does not adopt the broader meaning of regulation as “to govern” is also reflected in Article I, Section 8, which gives Congress the power “[t]o make Rules for the Government and Regulation of the land and naval Forces.” Here, the term “government” is coupled with “regulation” in a manner that makes clear that Congress has complete power to command or govern the army and navy, not merely the power to regulate them.
Less clear, but still consistent with the distinction between “to regulate” and “to govern,” is Congress’s power in Article IV, Section 3 “to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” Congress clearly has the power to govern the territories, and the term “rules and regulations” suggests strongly that its powers are broader than merely regulatory, although it includes the power to make “regulations” as well as other needful “rules.”
That the Constitution uses the term “to regulate” in this sense is made plain by the Second Amendment, the first portion of which reads, “A well-regulated Militia, being necessary to the security of a free State.” A “well-regulated” militia is not a prohibited militia but one that is well drilled.130 Even those who read the Second Amendment as a “collective” rather than an individual right on the basis of this preface concede—indeed their theory requires them to insist—that the power to regulate the militia that the Constitution elsewhere confers upon Congress131 does not include the power to forbid or prohibit the militia. By their interpretation, the sole purpose of the Second Amendment was to protect the continued existence of the state militias.132 By the same token, the power of Congress to “well-regulate” commerce among the states does not include the power to forbid or prohibit commerce.133 James Madison described a direct parallel between the regulation of the militia and the regulation of commerce when he asked:
How can the trade between the different States be duly regulated without some knowledge of their relative situations in these and other points? … How can uniform regulations for the militia be duly provided without a similar knowledge of some internal circumstances by which the States are distinguished from each other? These are the principal objects of federal legislation and suggest most forcibly the extensive information which the representatives ought to acquire.134
Ratification Debates. How do the debates in the state ratification conventions bear out this distinction between the power “to regulate” and the power “to prohibit”? The term “regulate” appears fifty-five times in all the records we have of the deliberations in the states.135 In every case where the context makes the meaning clear, the term connotes “subject to a rule” or “make regular” in the sense that “if you want to do something, here is how you should do it.” As with the word “commerce,” the term “regulate” is used with stunning uniformity—so much so that it would be tedious to reproduce the quotations here. Moreover, it is unnecessary because the term appears overwhelmingly in the context of regulatory powers that, as we observed in the intratextual discussion above, could not plausibly have included the power to prohibit such activities. These are references to the powers to regulate elections (18), jury trials (6), courts (5), militias (2), taxes (1), treaties (1), and the deliberations of the Senate (1).136 In the rest, the term “regulate” is used in its ordinary sense, in some context other than the Constitution of the new government.137 Nothing in these materials supports the conclusion that a power to regulate includes the power to prohibit.
The Pennsylvania Gazette. Usage was equally consistent in the Pennsylvania Gazette. The term “regulate” appears 393 times. The term “regulation” appears 410 times. Rarely, if at all, was either term used to mean something other than “make regular.” No unambiguous examples of these terms referring to prohibitions were found. Of course, as with “commerce,” a great many uses are unclear, but wherever context provides any clue, the intended meaning seems clearly a reference to rules stipulating the method or mode by which particular activities should be conducted.138
Of course even a narrow power “to regulate” commerce among the states, properly construed, would include a limited power to prohibit some activities related to trade. A power to specify the manner by which trade is to be conducted includes a power to prohibit, for example, fraud in the conduct of trade between states. This suggests that Congress, not the states, has a power to police wrongful conduct with respect to commerce between states. That is, Congress may protect the rights of persons engaged in commerce among the states or the rights of third persons that are violated by such commerce.
In other words, a narrow power to regulate rightful commerce includes the power to prohibit wrongful acts with respect to commerce between state and state. Properly conducted, commerce itself can rarely violate the rights of another, although one type of objectionable contract is clear: a contract for the purchase and sale of human beings. Such commerce is surely wrongful. Given that a prohibition on such commerce would not violate in any way either the rights “retained by the people” or the powers reserved to the states and would therefore be proper, we should not be surprised to find the framers assuming that such powers were subsumed within the power “to regulate.”
Article I, Section 9 stipulates that the “Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year [1808].” This suggests that, but for this section, Congress would have the power to prohibit the slave trade with foreign nations as part of either its taxing power or its power to regulate commerce.
Edmund Randolph discussed this clause as part of his argument to the Virginia ratification convention that the exceptions to congressional powers that appeared in the Constitution in no way implied a power to legislate generally. To rebut the contrary suggestion, Randolph endeavored to show how every exception modified an enumerated power: “To what power in the general government is the exception made respecting the importation of negroes? Not from a general power, but from a particular power expressly enumerated. This is an exception from the power given them of regulating commerce.”139 In this way, Randolph explicitly linked the power to prohibit the slave trade to the commerce power. Randolph’s recollection is borne out by the draft sketch of a constitution he had submitted during the Convention to the Committee of Detail. In his sketch, the prohibition is listed explicitly as the second exception to the power to regulate commerce.140
Ironically, just as the South’s commitment to slavery undermines the inference that Congress had the power to regulate intrastate trade, thereby supporting the narrow meaning of “among the states,” here the slavery issue provides evidence that Congress’s power “to regulate” commerce with foreign nations was broad enough to include the power to prohibit at least some kinds of commerce.141 But this is not the only reason to believe that the power to regulate commerce included the power to prohibit at least some types of trading.
Perhaps the most important reason to grant Congress the power to regulate commerce was not the power to eliminate trade barriers among the several states (which Madison referred to in Federalist 42 as a “supplemental provision”), but the power to place restrictions on foreign access to American markets to facilitate the opening of European trade to Americans as well as to promote domestic production. Thus, it was envisioned that the power to regulate trade with foreign nations included the power to prohibit certain types of trade by means of, for example, tariffs.142
However, even if it is conceded that the original meaning of “to regulate” included a power to restrict foreign commerce in negotiating treaties to lower foreign barriers to American goods as well as to protect some domestic markets from foreign competition, this aspect of the power to regulate does not necessarily extend to domestic commerce. Article I, Section 9 expressly bars Congress from using any “Regulation of Commerce” to favor the ports of one state over those of another,143 and Article I, Section 8 mandates that “all Duties, Imposts and Excises shall be uniform throughout the United States.”144 These provisions deny Congress the same degree of regulatory power over domestic commerce that it has over commerce with foreign nations. And they provide some circumstantial textual evidence that the domestic portion of the Commerce Clause lacked the prohibitory aspect that was included in the power to regulate commerce with foreign nations and was instead intended to eliminate and prevent any state-imposed barriers to trade between the states.
This is precisely the distinction offered by James Madison long after ratification in correspondence with Joseph Carrington Cabell, a post-Revolutionary intellectual and cofounder, with Thomas Jefferson, of the University of Virginia. Madison contended that the “meaning of the power to regulate commerce is to be sought in the general use of the phrase; in other words, in the objects generally understood to be embraced by the power when it was inserted in the Constitution.”145 And, as is well known, the purposes of granting Congress the power to regulate trade “with foreign nations” differed markedly from the purpose for regulating trade “among the several States.” Given the need for a broader power over the former, Madison said he “always foresaw”146 difficulty properly interpreting the latter.
Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it. Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged. And it will be safer to leave the power with this key to it, than to extend to it all the qualities and incidental means belonging to the power over foreign commerce, as is unavoidable.147
In other words, the use of tariffs and other forms of “prohibitory regulation[s]”148—the term itself a concession to the normal meaning of “regulation”—while necessary to effectuate the purposes of the power to regulate commerce with foreign nations, would directly contradict the purpose for regulating commerce among the states.149 The former power was supposed to protect and promote domestic economic activities by restricting imports, as well as to levy the types of restrictions that would induce foreign nations to open their markets to American shipping and goods. By contrast, within the United States, the purpose of the power was the reverse: to eliminate trade barriers at the state level that were thought entirely proper at the national level. And this last purpose is manifested in the textual prohibitions of preferential regulations of commerce and nonuniform duties or imposts—textual provisions that support an inference that the original meaning of “to regulate” varied with the subject of the regulation.
When the known purposes of the founders suggest that a single use of a word has two different meanings depending on the noun to which it refers, is this consistent with the objective approach to original meaning? Yes. In contracts, objective ambiguity can occur when a word has more than one reasonable or public meaning. For example, to take a famous contracts case, each party can use the name Peerless to refer to one of two different ships bearing the same name.150 If the name Peerless reasonably describes both ships, then the parties’ use of the term Peerless is ambiguous from an objective standpoint. Owing to the objective ambiguity, though they used the same word, as Oliver Wendell Holmes, Jr., put it, “[each party] said a different thing.”151
Likewise, a group of persons can use a single ambiguous verb to signify objectively two different activities depending on the noun to which it refers. When two people attach different meanings to the same word in a contract, we consider this to be a “misunderstanding” and assent can fail. But when a group of people agrees to use one word to connote, depending on the circumstances, two different meanings, they have objectively manifested their intentions, albeit in an awkward manner that makes the objective meaning of their words sometimes difficult to discern.
Although it is generally preferable to avoid reliance on teleological considerations or evidence of purpose when interpreting the objective meaning of constitutional terms, when it comes to the powers of government, this will frequently be unavoidable. As we have already seen, the Constitution requires that all laws be both necessary and proper. For there to be an assessment of the necessity of a particular means, there must be some understanding of the proper end. Unless the propriety of the exercise of a power includes some purposive element, then, it will sometimes be difficult, if not impossible, to assess its necessity. We shall return to this issue, when considering the requirement of “necessity” in chapter 13.
That the power to regulate rightful commerce includes the power to prohibit wrongful commerce helps explain the case of Champion v. Ames.152 In Champion, the Progressive Era Court upheld, in a 5–4 decision, the power of Congress to prohibit the interstate shipment of lottery tickets. After concluding that lotteries were “commerce” and that this commerce was being conducted “among the states,”153 the Court considered the question of “whether regulation may not under some circumstances properly take the form or have the effect of prohibition.…”154 Finding that a prohibition was proper in light of “the nature of the interstate traffic which it was sought by the act … to suppress,”155 the Court allowed Congress the discretion to ban such commerce altogether, not as a means to protect commerce between the states, but as an end in itself.
Champion can be understood as recognizing a police power in Congress over commerce between the states analogous to the police power of a state within its borders.
If a State, when considering legislation for the suppression of lotteries within its own limits, may properly take into view the evils that inhere in the raising of money, in that mode, why may not Congress, invested with the power to regulate commerce among the several States, provide that commerce shall not be polluted by the carrying of lottery tickets from one State to another?156
After all, states do not have such a power to prohibit wrongful interstate commerce. Over the dissent of four justices, the Court reasoned that this power must reside in Congress or there is an unexplained gap in the allocation of power between state and federal authorities. As the Court stated, “We should hesitate long before adjudging that an evil of such appalling character, carried on through interstate commerce, cannot be met and crushed by the only power competent to that end … because Congress alone has the power to occupy, by legislation, the whole field of interstate commerce.”157
The four dissenters denied that the power to regulate commerce included “the absolute power to prohibit it.”158 They contended that when the states “surrendered the power to deal with commerce as between themselves to the general government it was undoubtedly in order to form a more perfect union by freeing such commerce from state discrimination, and not to transfer the power of restriction.”159 They also contended that the scope of the power over commerce with foreign nations was not necessarily the same as the power over interstate commerce. To the contrary,
the latter was intended to secure equality and freedom in commercial intercourse as between the states, not to permit the creation of impediments to such intercourse; while the former clothed Congress with that power over international commerce, pertaining to a sovereign nation in its intercourse with foreign nations, and subject, generally speaking, to no implied or reserved power in the states. The laws which would be necessary and proper in the one case would not be necessary or proper in the other.160
Be this as it may, the majority in Champion did not extend the power of Congress to prohibit wrongful commerce to commerce that occurs wholly within the boundaries of a state. “Besides, Congress, by that act, does not assume to interfere with traffic or commerce in lottery tickets carried on exclusively within the limits of any State, but has in view only commerce of that kind among the several States.”161
Whether or not the Court in Champion erred in its interpretation of the Commerce Clause—and I find this a close question—in upholding this particular prohibition it wrongly assumed the police power of the states to be improperly broad. As will be discussed in the next chapter, though the unenumerated police power should be construed to include the power to prohibit wrongful acts, to be wrongful such acts must involve the violation of the rights of others. If this is the proper scope of the police power, then Champion was wrongly decided. The prohibition on the interstate sale of lottery tickets is neither a necessary regulation of the manner by which trade may be carried on, nor a prohibition of activity that violates the rights of others.
Upon all the evidence it looks as though today’s equation of the power of regulation with a power of prohibition represents a euphemistic use of the term “regulate,” the original meaning of which was much narrower. Indeed, notwithstanding the holding in Champion, as late as 1919, it was still thought necessary to enact the Eighteenth Amendment, by which “the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.”162 Even this prohibition did not reach mere possession or noncommercial transfers of alcohol. And a proposed, but unratified, 1926 amendment made the distinction between regulation and prohibition abundantly clear when it declared: “The Congress shall have power to limit, regulate, and prohibit the labor of persons under eighteen years of age.”163
The historical evidence overwhelmingly supports a narrow original meaning of Congress’s power “to regulate Commerce … among the several States,” though interpreting the precise meaning of “regulate” is tricky. “Commerce” means the trade or exchange of goods including the means of transporting them; “among the several States” means between persons of one state and another; and the term “to regulate,” when applied to domestic commerce, means “to make regular”—that is, to specify how a rightful activity may be transacted—and the power to prohibit wrongful acts. Were the evidence in equipoise between the narrow and broad meanings of these terms, the most that could be claimed is that we must establish a construction of this clause that is consistent with the rest of the constitutional scheme. In the face of such ambiguity, we are obligated to adopt a narrower construction if that fits better with the rest of the constitutional scheme, including the principles of federalism and limited enumerated powers, as I think it does.
Suppose, however, that we decide to adopt the broadest possible original meaning of the power to regulate commerce among the several states: that Congress is empowered to make regular or prohibit any gainful activity that occurs anywhere in the United States. Even this interpretation constrains the “propriety” of Congress’s power to a greater degree than is currently acknowledged and would leave Congress with less power than it currently claims. Such a power would unquestionably exclude entirely noncommercial—or nongainful—activities from the scope of Congress’s regulatory powers. That is, any activity that is not being done for profit or gain is completely untouched by Congress’s power to regulate commerce among the states even under the most expansive interpretation of this provision’s original meaning.
These limits have been examined in some detail by Grant Nelson and Robert Pushaw.164 Examples of the types of activities that Congress may not regulate or prohibit, provided that they are not done for profit or gain are: the transmission of information of any kind between persons via telephone or computer; the movement of persons across state lines “for immoral purposes” (say for purposes of adultery or fornication); the mere possession of any good whatsoever because mere possession is not gainful (unless it is possession for purposes of sale), which would include the mere possession of any firearm, therapeutic or intoxicating drug, or erotic literature. This last distinction was adopted in the Eighteenth Amendment, which barred the manufacture and sale of alcoholic beverages, but not their mere possession, by consumers. Because it, too, is noncommercial, Congress could make no law respecting transfer of ownership or possession of any of these or other goods, provided that their transfer was not for profit or gain.
Even under the broad conception of commerce, Congress may not control the nongainful use or destruction of any object, just because it had once been in commerce. The fact that a particular item may once have been the subject of commerce or gainful activity does not make it perpetually so—or the powers of Congress under the Commerce Clause would know no limit whatsoever. So any laws prohibiting or even regulating the private possession or use of firearms of any kind are beyond the powers of Congress “to regulate commerce among the states,” as are laws restricting the burning of the American flag.
Therefore, under the broadest original meaning of every term in the Commerce Clause, federal laws prohibiting the possession and use of alcohol, tobacco, firearms, drugs, sexual literature, or any other items are improper and unconstitutional. One need not reach the issue of the alleged necessity of such laws. Consequently, even the broadest meaning of Congress’s power to regulate commerce among the states would leave untouched most of the natural rights retained by the people to possess, use, and dispose of their property however they may choose, provided these activities are not done for profit or gain. The regulation or prohibition of these activities would be within the purview of the states.
If the most expansive original meaning of the power to regulate commerce among the states would greatly restrict the powers currently claimed by Congress, how do the courts justify Congress’s current exercise of even broader powers? The rationale is not based on original meaning at all,165 but from how the courts have construed the term “among the states.” While long affirming that “among the states” means “between state and state,” they have also construed “among the states” to permit the regulation of, not merely commerce itself, but any activity that affects the commerce of more states than one. Then, to determine whether any particular action has this effect, they aggregate the effects of all similar actions. Under the “aggregate affects” doctrine, then, any activity that affects commerce among the states, though it may be wholly intrastate and noncommercial, is brought under the commerce power.
The “aggregate affects” test also allows the commerce power to reach actions each of which has minuscule or no effect upon interstate commerce at all. Of course, most of what we do, indeed all our actions in the market, have effects that extend beyond our immediate vicinity, especially when considered in the aggregate. Each of our decisions to buy or refrain from buying gasoline, for example, certainly determines its national price when taken in the aggregate. By allowing Congress the power to regulate any activity that, when aggregated, “affects” commerce between the states, courts have granted Congress a near plenary power to do anything it wills and thus have nearly destroyed the system of limited enumerated powers.
One of the most extreme examples of this was the 1942 case of Wickard v. Filburn.166 In Wickard, the Supreme Court found that Congress had the power to regulate the production and consumption of wheat grown by a farmer and used to feed his own livestock and family because such activity, in the aggregate, “affects” the national wheat market. In Wickard, as Chief Justice Rehnquist explained forty years later,
the Court expanded the scope of the Commerce Clause to include the regulation of acts which taken alone might not have a substantial economic effect on interstate commerce, such as a wheat farmer’s own production, but which might reasonably be deemed nationally significant in their cumulative effect, such as altering the supply-and-demand relationships in the interstate commodity market.167
By this rationale the distinction between interstate and intrastate commerce is destroyed.
Such expansive doctrinal constructions are often defended as an unavoidable implication of an increasingly interconnected national economy that was unforeseen by the founders. If we want the Constitution to keep up with an increasingly integrated national economy, the argument goes, we have no choice but to construe the Commerce Clause in this way. Yet an interconnected economy was far from unforeseen by the founders. As Madison stated in his letter responding to Justice Marshall’s loose construction of the Necessary and Proper Clause in McCulloch: “In the great system of political economy, having for its general object the national welfare, everything is related immediately or remotely to every other thing; and consequently, a power over any one thing, if not limited by some obvious and precise affinity, may amount to a power over every other thing.”168
Moreover, the founders certainly distinguished between commerce and activities that affect or are benefited by commerce. As was explained by Jefferson in his objections to the constitutionality of the first national bank:
To erect a bank, and to regulate commerce, are very different acts. He who erects a bank, creates a subject of commerce in its bills; so does he who makes a bushel of wheat, or digs a dollar out of the mines; yet neither of these persons regulates commerce thereby. To make a thing which may be bought and sold, is not to prescribe regulations for buying and selling.169
Jefferson also objected that, even if it could be considered a regulation of commerce, it would not be limited to commerce among the several states:
Besides, if this was an exercise of the power of regulating commerce, it would be void, as extending as much to the internal commerce of every State, as to its external. For the power given to Congress by the Constitution does not extend to the internal regulation of the commerce of a State, (that is to say of the commerce between citizen and citizen,) which remain exclusively with its own legislature; but to its external commerce only, that is to say, its commerce with another State, or with foreign nations, or with the Indian tribes.170
For Jefferson, then, there was a constitutional distinction between “a regulation of trade” and a measure that is “productive of considerable advantages to trade.” Under current doctrines, this distinction has been dissolved.
Were the “aggregate effects” maneuver not bad enough, the courts have also adopted an “articles of commerce” doctrine under which Congress has power to regulate any activity that makes use of any product that once traveled in interstate commerce. Using this doctrine, the Supreme Court upheld the power of Congress to control the sale of drugs by a local pharmacist to his customer because the package lacked warnings required of drugs traded between states.171 The Court also upheld the federal prosecution of a person for possessing a prohibited firearm merely because it once had moved in interstate commerce.172 David Engdahl calls this the “herpes theory” of interstate commerce in that “some lingering federal power infects whatever has passed through the federal dominion.”173 Under this doctrine, Congress claims the power to criminalize any conduct that involves the use a credit card, telephone, or fax machine that was sold in interstate commerce.
By use of these constructions, Congress has claimed, and the Supreme Court has permitted, what amounts to a general plenary power to legislate in any manner it wishes. In 1995, however, the Supreme Court began again to place some limit on the commerce power by requiring that any affect on interstate commerce be “substantial,”174 and by limiting the application of the aggregate affects doctrine to intrastate economic activity.175 In a concurring opinion in United States v. Lopez, Justice Thomas warned that “our case law has drifted far from the original understanding of the Commerce Clause.”176 He urged the Court “to temper our Commerce Clause jurisprudence in a manner that both makes sense of our more recent case law and is more faithful to the original understanding of that Clause.”177 The most persuasive evidence of original meaning—statements made during the drafting and ratification of the Constitution as well as dictionary definitions and The Federalist—strongly supports Justice Thomas’s and the Progressive Era Supreme Court’s narrow interpretation of Congress’s power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
The Presumption of Liberty places the burden on Congress to justify the propriety of its actions by pointing to the enumerated power it is employing. When considering the legitimacy of the powers granted to Congress by the Constitution, we must note that, standing alone, the narrowest construction of either “commerce” or “among the states” would not reduce the scope of government power over private activity but would merely shift power from the national to the state governments. If Congress is barred from regulating agriculture and manufacturing, it would fall to the states to regulate these activities. The same is true if “among the states” is interpreted as “between persons of different states,” in which case states would have the power to regulate wholly intrastate trade.
The most crucial issue with respect to the legitimacy of the commerce power turns out to be the meaning of “to regulate.” Empowering either Congress or the states to prohibit the wrongful exercise of freedom, which can be characterized as license, as opposed to liberty does not violate the rights retained by the people. Thus, it would be perfectly proper to prohibit the slave trade. If, however, “to regulate” grants Congress (or states) the power to impose any restriction it pleases on gainful activity that is rightful, then this power authorizes the violation of the rights retained by the people and is illegitimate. Given such a meaning, there is no reason to believe that laws enacted pursuant to this power are actually proper even though they are deemed “proper” by the (alleged) original meaning of the text.
On the other hand, if “to regulate” means “to make regular” or, as was defined in Johnson, “to subject to a rule,” then there need be no inherent conflict between this grant of power and the rights of the people. For it is entirely proper to regulate the exercise of one’s natural rights. The proper regulation of contract and property is nearly as essential to ensuring the ability of the people to pursue happiness as the requirements of justice defined by natural rights. Thus, a grant of power to Congress to regulate commerce in this sense complements and enhances the rights of the people. Laws that effectuate this power are perfectly proper and constitutional—if they are also necessary.
1 See Lawson and Granger, “The ‘Proper’ Scope of Federal Power.”
2 This list appears at the beginning of chapter 7.
3 Farrand, Records, 2:17.
4 Ibid.
5 Ibid.
6 Ibid.
7 Ibid.
8 See Lynch, Negotiating the Constitution, 17–19.
9 Farrand, Records, 2:18.
10 See ibid. Randolph protested that he had been “strangely misinterpreted.”
11 Ibid., 19.
12 Ibid., 25 (Governeur Morris).
13 Ibid., 26 (James Wilson).
14 Ibid., 367.
15 U.S. Const., Art. I, § 1.
16 That is why a commitment to originalism depends on the prior assessment that the constitution to be interpreted is “good enough” to provide a legitimate lawmaking process. This, in turn, is why a rejection of originalism also entails a rejection of the written constitution being interpreted. See chapter 4.
17 Richard A. Epstein, “The Proper Scope of the Commerce Power,” Virginia Law Review 73 (1987): 1388, 1395.
18 By this I mean the narrowing sense is not provided by some other phrase such as “with foreign Nations.”
19 See e.g., Nathan Bailey, An Universal Etymological English Dictionary, 26th ed. (Edinburgh: Neill & Co., 1789) (“trade or traffic”); T. Sheridan, A Complete Dictionary of the English Language, 6th ed. (Philadelphia: W. Young, Mills and Son, 1796), 585–86 (“Exchange of one thing for another; trade, traffick”).
20 This is apart from the sixteen times in which it appears in quotations from various proposals.
21 Madison, Notes of Debates, 478 (August 18, 1787) (emphasis added). The term “trades” connotes crafts and other types of trades, not trade or exchange.
22 Federalist 11, 89 (Hamilton).
23 Federalist 12, 91 (Hamilton).
24 Federalist 17, 118 (Hamilton).
25 Federalist 21, 141 (Hamilton).
26 Federalist 35, 216 (Hamilton).
27 Alexander Hamilton, “Final Version of an Opinion on the Constitutionality of an Act to Establish a Bank” (February 23, 1791), in Harold C. Syrett et al., eds., The Papers of Alexander Hamilton, vol. 8 (New York: Columbia University Press, 1965), 97, 100. See also ibid., 118 (referring to “the regulation of trade between the states”).
28 Elliot, Debates, 2: 57.
29 Ibid., 58.
30 Ibid., 170.
31 Ibid., 83.
32 Ibid., 188.
33 Ibid., 261.
34 Ibid., 336.
35 Ibid., 237.
36 Ibid., 255.
37 Ibid., 369.
38 Ibid.
39 Ibid., 265–66.
40 The same is true of Chancellor Livingston’s argument that “Some gentlemen suppose that, to understand and provide for the general interests of commerce and manufactures, our legislators ought to know how all commodities are produced, from the first principle of vegetation to the last polish of mechanical labor; that they ought to be minutely acquainted with all the process of all the arts. If this were true, it would be necessary that a great part of the British House of Commons should be woollen-drapers; yet we seldom find such characters in that celebrated assembly” (ibid., 275).
41 Ibid., 245 (emphasis added).
42 See, e.g., Grant S. Nelson and Robert J. Pushaw, Jr., “Rethinking the Commerce Clause: Applying First Principles to Uphold Federal Commercial Regulations but Preserve State Control over Social Issues,” Iowa Law Review 85 (1999): 1 at 40 n. 163 (citing Charles Pinckney’s reference at the Constitutional Convention to the five “commercial interests” of the American states as including staple crops such as “wheat,” “tobacco,” and “Rice & Indigo,” as well as “fisheries” and “trade,” as evidence that he held a broad view of “commerce”). Pinckney’s statement can be read as enumerating the different sources of various articles of commerce throughout the states. In no way does his list comprehend all gainful activities. In addition, we shall see below that Pinckney publicly used the term “commerce” in the narrow sense.
43 Although, as will be seen below, the original meaning of “between the States” might still have greatly limited the scope of this power.
44 Elliot, Debates, 467.
45 Ibid., 492.
46 Ibid., 524.
47 Ibid., 4:17.
48 Ibid., 20.
49 Ibid., 159.
50 Ibid., 284.
51 Ibid., 321.
52 Ibid., 321–22.
53 Ibid., 322 (stating that “there are some kinds of commerce not only fair and valuable, but such as ought to be encouraged by government”).
54 On the other hand, these usages could be construed as somewhat expanding the scope of “commerce” to include trade and exchange, as well as transporting for these purposes. Even so expanded, however, the original meaning of “commerce” would not embrace agriculture, manufacturing, or other productive activity. I will discuss this at greater length below in the context of Gibbons v. Ogden.
55 Eliot, Debates, 3:43.
56 Ibid., 66.
57 Ibid., 72.
58 Ibid., 78.
59 Ibid., 105.
60 Ibid., 235.
61 Ibid., 249.
62 Ibid., 428.
63 Ibid., 635.
64 See, e.g., Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824) (invalidating an exclusive navigation license granted by the New York state legislature). I shall discuss Gibbons at greater length below.
65 Elliot, Debates, 3:295.
66 Ibid., 291.
67 See. e.g., Farrand, Records, 1:243, 263.
68 See Elliot, Debates, 2:80 (“Why not give Congress power only to regulate trade?”); ibid., 4:70 (“[I]t was well known he was for giving power to Congress to regulate the trade of the United States”). It is possible, although I think implausible given the context, to infer that these two speakers were advocating a power narrower than the power to regulate “commerce.”
69 Madison, Letters, 4:233 (letter to Professor Davis, not sent, 1832).
70 By “cherry-picked” I do not mean to suggest any impropriety. Until the advent of electronic searches it was impractical to conduct comprehensive empirical surveys of the sort I present here.
71 Robert J. Pushaw, Jr., and Grant S. Nelson, “A Critique of the Narrow Interpretation of the Commerce Clause,” Northwestern University Law Review 96 (2002): 695, at 700.
72 For details of the survey methodology, see Randy E. Barnett, “New Evidence of the Original Meaning of the Commerce Clause,” Arkansas Law Review 55 (2003), at 865–57.
73 Clarence S. Brigham, History and Bibliography of American Newspapers, 1690–1820 (Worcester, Mass.: American Antiquarian Society, 1947), 2:933–34. Although the electronic archives end at 1800, Brigham dates the demise of the paper as 1815. Ibid., 934.
74 Charles E. Clark and Charles Wetherell, “The Measure of Maturity: The Pennsylvania Gazette from 1728–1765,” William and Mary Quarterly 46 (1989): 279–80.
75 A brief note on the methodology employed. When this survey was made, the Accessible Archives database was divided into the following periods, 1728–50, 1751–65, 1766–83, and 1784–1800. At the time of this study, each period had to be searched separately and, if there were more than five hundred hits during any period, only a random selection of five hundred results would be displayed. The periods before 1750 each had fewer than five hundred hits, but after 1750 the number of hits per period exceeds five hundred. Therefore, to ensure that every example was surveyed, it was necessary to search the periods after 1750 year by year with a search string of the following type: <commerce & 1766>. Extraneous references to articles containing somewhere within them the date searched for, for example, 1766, but that were published in some other year were easily identified by their heading and ignored. I was told by Accessible Archives that they will be redesigning the search engine to make this sort of effort unnecessary.
76 October 1, 1728 (#1). Citations to the database will be by date and the unique item number of each entry. Any entry cited here can be retrieved through a search for <commerce & [item number]> (except for item #1, which can be found through a search for <commerce & “october 1 1728”>).
77 March 7, 1787 (#73694).
78 December 29, 1773 (#54627).
79 December 5, 1754 (#17724).
80 22 U.S. (9 Wheat.) 1 (1824).
81 Several proposals in the Constitutional Convention to require a supermajority for the passage of navigation acts make it clear that such acts were thought to be within the powers of Congress even after the Convention moved to an enumeration of powers. See, for example, Farrand, Records, 2:143 (proposal in Edmund Randolph’s handwriting to the Committee of Detail); ibid., 169 (proposal in James Wilson’s handwriting to Committee of Detail); ibid., 183 (proposal of Committee of Detail). The Committee eventually struck the proposal. See ibid., 400.
82 See Oxford English Dictionary, 2d ed., vol. 3 (Oxford: Oxford University Press, 1989), 552 (com—“with”; merci—“merchandise”).
83 See Farrand, Records, 2:449–53.
84 Ibid., 452 (statement of John Rutledge).
85 Ibid., 450 (statement of Gouverneur Morris).
86 See ibid., 451 (statement of James Madison that “the disadvantage to the S[outhern] States from a navigation act, lay chiefly in a temporary rise of freight”).
87 See Elliot, Debates, 3:428 (statement of Mr. Grayson of Virginia that “Commerce and navigation are the principal sources of” the wealth of the maritime nations of Europe); ibid., 604 (statement of Mr. Mason of Virginia referring to the opinion expressed by another delegate that “with respect to commerce and navigation, … their regulation, as it now stands, was a sine qua non of the Union, and that without it the states in Convention would never concur”).
88 Ibid., 2:170 (statement of Mr. Turner of Massachusetts referring to “the deplorable state of our navigation and commerce, and various branches of business thereon dependent”).
89 Ibid., 83 (statement of Mr. Bowdoin of Massachusetts referring to “a decrease of our commerce and navigation, and the duties and revenue arising from them. Hence an insufficient demand for the produce of our lands, and the consequent discouragement of agriculture”).
90 Elliot, Debates, 3:660 (proposal of Virginia); ibid., 4:245 (proposal of North Carolina). See also ibid., 2:552–53 (same amendment disapproved by Maryland convention).
91 Ibid., 3:78.
92 22 U.S. (9 Wheat) at 189–90 (“Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse”). It is worth noting that Chief Justice Marshall did not suggest that navigation was covered because “commerce” included the trade or exchange of services for money.
93 The term “commercial intercourse” is used six times by four speakers at two conventions. See Elliot, Debates, 3:344 (statement of Mr. Monroe of Virginia referring to “a commercial intercourse between the United States and Spain”); ibid., 365 (statement of Mr. Corbin of Virginia referring to treaties “being a regulation of commercial intercourse between different nations”); ibid., 4: 119 (statement of Mr. Davie of North Carolina referring to “that commercial intercourse, which, founded on the universal protection of private property, has, in a measure, made the world one nation”); ibid., 221 (statement of Mr. Iredell of North Carolina that “At the beginning of the late war with Great Britain, the Parliament thought proper to stop all commercial intercourse with the American provinces”).
94 156 U.S. 1 (holding that the Sherman Act did not apply to manufacturing trusts).
95 298 U.S. 238, 298 (1936) (ruling that Congress could not regulate the conditions under which coal is produced before it became an article of commerce).
96 156 U.S. at 12–13.
97 298 U.S. at 298.
98 Ibid., 304.
99 See, for example, Hamilton and Adair, The Power to Govern, 184–94.
100 Ibid., 191–94.
101 Ibid., 181.
102 But see ibid., 163 (quoting William Davie’s reference to “commerce, agriculture, and manufactures of America” and his assertion that “Commerce, sir, is the nurse of both” without commenting on the distinction explicit in Davie’s usage).
103 Farrand, Records, 1:291.
104 William Winslow Crosskey, Politics and the Constitution in the History of the United States (Chicago: University of Chicago Press, 1953).
105 Dickenson’s pamphlet was written at a time when the plenary power of England to govern the affairs of the colonies was politically difficult to question. Late in life Jefferson recalled his opposition to what he called “the half-way house of John Dickinson who admitted that England had a right to regulate our commerce, and to lay duties on it for the purposes of regulation, but not of raising revenue.” Writings of Thomas Jefferson, 1:14.
106 Crosskey, Politics and the Constitution, 5.
107 Ibid., 5–6.
108 Federalist 23, 153 (Hamilton) (“The principal purposes to be answered by union are these—the common defense of the members; the preservation of the public peace, as well as against internal convulsions as external attacks; the regulation of commerce with other nations and between the States; the superintendence of our intercourse, political and commercial, with foreign countries”).
109 22 U.S. 1, 195 (1824).
110 Federalist 42, 267–68 (Madison) (emphasis added).
111 Federalist 45, 292–93 (Madison). See also ibid., 293 (“The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose and from which no apprehensions are entertained”).
112 Federalist 11, 90 (Hamilton).
113 Ibid., 89–90 (emphasis added).
114 Elliot, Debates, 2:218.
115 Ibid.
116 The act was ineffectual because most of the states that accepted the recommendation of Congress made their consent contingent on the unanimous acceptance of all the other states. When this did not occur, the measure failed. See Report of the States on the Regulation of Commerce, &c. Elliot, Debates, 1:108–9 (March 3, 1786).
117 In fact, the act appears to have focused entirely on foreign commerce. See ibid., 106–8.
118 See Scott v. Sandford, 60 U.S. 393, 408 (1858) (“Dred Scott”) (describing the English government as “extensively engaged in this commerce”). See also ibid., 425 (describing slaves as “subjects of commerce”). Below I shall also discuss the relationship between the Commerce Clause and the restriction on Congress’s power to restrict the slave trade with other nations.
119 See Crosskey, Politics and the Constitution, 50–83 (noting the difference between “among” and “between” and asserting that the natural meaning of “among the several states” included all commerce occurring within any state).
120 See, for example, Nelson and Pushaw, “Rethinking the Commerce Clause,” 42–49 (discussing deficiencies in Crosskey’s interpretation of “among the States” and concluding: “Although Crosskey’s interpretation is defensible, he did not marshal evidence strong enough to overcome the presumption that the regulation of commerce, like all federal power, does not extend purely to internal state affairs”).
121 Tucker, in appendix of Blackstone’s Commentaries, 250, n.*.
122 Ibid. Notice once again the close connection between “commerce” and navigation.
123 Ibid.
124 Ibid. By referring to a navigation law that limits “the terms and conditions, upon which vessels may be permitted to trade,” Tucker’s usage again suggests that navigation is subsumed within the meaning of trade or commerce.
125 Ibid.
126 Because I think the evidence of the narrow original meaning of “commerce” is over-whelming, in chapter 13 I cite the failure of the Constitution to grant Congress the power to regulate interstate emissions as a genuine defect in the written Constitution. It is one of the few examples where the founders failed to anticipate modern developments, but the flaw would swiftly be repaired by a constitutional amendment were the narrow definition of commerce adopted by the courts.
127 Gibbons, 22 U.S. (9 Wheat) at 194–95.
128 See, for example, United States v. Lopez, 514 U.S, 549, 553 (citing Gibbons).
129 This is not to deny Richard Epstein’s contention that all commerce takes place in one state or another. See Epstein, “Proper Scope,” 1403. Rather, it is to insist that Congress has power only to regulate those activities that are part of a transaction between persons of different states (or with foreign nations or Indian tribes), not a transaction between persons of the same state.
130 This is implicit in Hamilton’s observation that “To oblige the great body of the yeomanry and of the other classes of the citizens to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people and a serious public inconvenience and loss.” Federalist 29, 184 (Hamilton).
131 See U.S. Const., Art. I, § 8, Cl. 16 (referring to the power of Congress: “To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States”). Even here the distinction between regulation and governance is implicit. Congress has the general power to regulate the militia by “organizing, arming, and disciplining” it (but not the power to abolish it), and has the stronger power “to govern” only that “part” of the militia that is in actual service.
132 See, for example, Keith A. Ehrman and Dennis A. Henigan, “The Second Amendment in the Twentieth Century: Have You Seen Your Militia Lately?” University of Dayton Law Review (1989): 5, 57 (arguing that the framers’ intent behind the Second Amendment was to protect independent state militias).
133 The first amendment originally proposed by Congress, which was never ratified, is entirely consistent with regulate’s meaning “make regular.” It directed that the number of representatives “shall be so regulated by Congress” that the number of representatives shall not fall below a specified proportion of the population.
134 Federalist 53, 333 (Madison). Notice here the reference to the Commerce Clause as regulating “trade between the different States.” In Federalist 4, John Jay drew a like parallel between the power of Congress over the militia and commerce when he referred to “our trade prudently regulated, our militia properly organized and disciplined.” Federalist 4, 49 (Jay).
135 Massachusetts (13), Connecticut (1), New York (9), Pennsylvania (2), Virginia (16), North Carolina (11), and South Carolina (3).
136 I have, of course, omitted from this list discussions of the power to regulate commerce (5), trade (2), or contracts (1) because it is the scope of this power that is at issue here. Nevertheless, the two references to regulating “trade” support the narrow meaning of “commerce.”
137 See, for example, Elliot, Debates, 2:16 (“[W]e ought to consult the sentiments of wise men, who have written on the subject of government, and thereby regulate our decision on this business.”); ibid., 252 (“[T]he general sense of the people will regulate the conduct of their representatives.”); ibid., 301 (“[T]here should be, in every republic, some permanent body to correct the prejudices, check the intemperate passions, and regulate the fluctuations, of a popular assembly.”); ibid., 384 (referring to “making laws to regulate the height of fences and the repairing of roads”); ibid., 3:137 (“There are certain maxims by which every wise and enlightened people will regulate their conduct.”); ibid., 227 (“We may now regulate and frame a plan that will enable us to repel attacks”).
138 For a more detailed account of the findings, see Barnett, “New Evidence,” 863–65.
139 Elliot, Debates, 3:464.
140 See James H. Hutson, ed., Supplement to Max Farrand’s The Records of the Federal Convention of 1787 (New Haven: Yale University Press, 1987), 187.
141 The Supreme Court later held that although the foreign slave trade was subject to congressional legislation—see Groves v. Slaughter, 40 U.S. 449 (1841)—the federal government clearly lacked the power to regulate the domestic slave trade. See ibid., 508 (Justice Taney concurring) (“[T]he power over this subject is exclusively with the several states.”); ibid., 514 (Justice Baldwin concurring) (asserting that the regulation of slavery “depended on the law of each state,” and that “no power [over this] is granted of the Constitution to Congress”).
142 Another means to promote American trade by requiring that trade be carried in American ships could be viewed as a regulation rather than a prohibition, as it states, “if you want to trade with the United States, here is how you must do it.”
143 Although this power applies to both domestic and foreign commerce, it does not prevent the Congress from enacting “regulations of commerce” that give preference to trade with one foreign nation over that with another.
144 To the extent that duties and imposts are proper means for regulating commerce with foreign nations (as opposed to raising revenues) by favoring one nation over another or one type of good over another, this clause operates to prohibit Congress from using its power to regulate commerce among the states to impose duties or imposts to favor one state over another.
145 Writings, 3:571 (letter to Joseph C. Cabell, March 22, 1827).
146 Ibid., 4:14 (letter to Joseph C. Cabell, February 13, 1829).
147 Ibid., 15. Madison’s account would also explain why “[n]o serious and sustained effort … was ever made to employ against the domestic slave trade the power of Congress to regulate interstate commerce.” Arthur Bestor, “The American Civil War as a Constitutional Crisis,” American Historical Review 69 (1964): 327, 342. According to Bestor, “[p]ublic opinion seems to have accepted as virtually axiomatic the constitutional principle” that Congress had no power to prohibit or obstruct the trade in slaves between the slaveholding states. Ibid.
148 Writings, 4:14 (letter to Joseph C. Cabell, February 13, 1829).
149 It may be argued that admitting evidence of such purposes is a reversion to original intent rather than original meaning. I discuss this evidence, however, to put in perspective the express textual restriction on Congress’s power to restrict the slave trade with foreign nations; see U.S. Const., Art. I, § 9, and its possible effect on the meaning of “to regulate” in the Commerce Clause. But the same evidence of purpose that helps explain this broadening of the power “to regulate” also includes evidence that this broadening was limited to foreign trade. This is an example of how evidence of publicly known purposes helps to shape the original public meaning of words and phrases.
150 See Raffles v. Wichelhaus, 2 H & C 906, 159 Eng Rep 375 (Ex 1864).
151 Oliver Wendell Holmes, Jr., The Common Law (1881; reprint, Boston: Little, Brown, 1963), 242.
152 188 U.S. 321 (1903).
153 Ibid., 353–55, 363.
154 Ibid., 355 (emphasis added).
155 Ibid.
156 Ibid., 356.
157 Ibid., 357–58.
158 Ibid., 371.
159 Ibid., 372.
160 Ibid., 373.
161 Ibid., 357.
162 U.S. Const., Amend. XVIII (emphasis added).
163 H.J. Res. 184, 68th Cong., 1st sess. (June 2, 1924, in 43 Stat 670) (emphasis added).
164 See Nelson and Pushaw, “Rethinking the Commerce Clause,” 1. While recognizing the limits of the broadest meaning of “commerce,” Nelson and Pushaw accept—wrongly, in my view—the idea that Congress has nearly unlimited discretion to determine those actions that in any way affect commerce between more states than one. And they also mistakenly accept Crosskey’s broad interpretation of “commerce.” In addition to the evidence of original meaning presented here, which they do not consider, I offer some additional criticisms of their analysis in Randy E. Barnett, “The Original Meaning of the Commerce Clause,” University of Chicago Law Review 68 (2001): 101, 119–20.
165 As was already seen, the primary source of expanded power associated with the Commerce Clause comes not from an interpretation of the Commerce Clause but from an expansive interpretation of the Necessary and Proper Clause.
166 312 U.S. 111 (1942).
167 Hodel v. Virginia Surface Mining Association, 452 U.S. 264, 308 (1981) (Justice Rehnquist concurring).
168 James Madison, “Letter to Judge Roane” (September 2, 1819), in Madison, Letters, 3:143–44 (emphasis added).
169 The Writings of Thomas Jefferson, 6:198–99 (opinion against the constitutionality of a National Bank, February 15, 1791).
170 Ibid., 199.
171 See United States v. Sullivan, 332 U.S. 689 (1948).
172 See Scarborough v. United States, 431 U.S. 563 (1977).
173 David E. Engdahl, “The Necessary and Proper Clause as an Intrinsic Restraint on Federal Lawmaking Power,” Harvard Journal of Law and Public Policy 22 (1998): 120.
174 United States v. Lopez, 514 U.S. 549, 559 (1995) (“We conclude … that the proper test requires an analysis of whether the regulated activity ‘substantially affects’ interstate commerce”).
175 United States v. Morrison, 529 U.S. 598, 611 (2000) (“in those cases where we have sustained federal regulation of intrastate activity based upon the activity’s substantial effects on interstate commerce, the activity in question has been some sort of economic endeavor”).
176 United States v. Lopez, 514 U.S. at 584.
177 Ibid.