400 North Capitol Street, NW
Washington, DC 20001
- Toll Free 1.888.564.6273
- Local 202.783.3870
In our first 3 installments of this 8 part series examining the constitutionality of the health care mandate, we defined the term "individual mandate on health insurance" (Blog 1), revealed the need to adhere to a strict textual reading of the Constitution (Blog 2) and identified the "Commerce Clause" as the section of the Constitution that the federal government will use to defend the enforcement of its individual mandate (Blog 3). Now we must turn to our founding document. We must examine the Constitution and attempt to understand the meaning of the words that our framers handed down to us. We must know what they meant when they granted Congress the authority "to regulate commerce… among the several States.” To do so, we will examine the words that make up the Commerce Clause and see how they were understood by both our founders and the general public at the time of our nation's founding. And we will begin with the word commerce.
Section 4: Commerce
Just as there are conflicting views as to how the Constitution should be read, so too are there differing perspectives of what the founders meant by “commerce.” Some insist that the founders use the word “commerce” ambiguously. Commerce, they assert, extends far beyond trade. In Politics and the Constitution in the History of the United States, William Winslow Crosskey—a self-proclaimed originalist—claims that the powers granted to Congress by the Commerce Clause are virtually limitless. He explains:
[I]t would seem that commerce… is used to mean the whole economy, the whole system of exchange, the whole congeries of interrelated gainful activities, which the American nation is to carry on.
In the eyes of Crosskey and his contemporaries, commerce extends not merely to trade but to every activity that affects trade. Trade, manufacturing, agriculture: all “gainful activities” fall within the regulatory powers of the federal government.
However, in the founders’ view, such a vast expansion upon the powers that the word “commerce” delegates to Congress is inherently flawed. Proponents of a broad understanding of “commerce” run the same risk as those who champion a loose reading of the Constitution; namely, intrusion upon individual liberties by illegitimate governmental power. Furthermore, there is little historical evidence to support the claim that the founders saw the word “commerce” as including “any gainful activity.” In fact, a study of the writings of the time reveals quite the opposite. The word “commerce” was regularly understood—by both the framers of the Constitution and the general public—to mean “trade.”
When attempting to understand the meaning that the word “commerce” holds in the Constitution, the first text to investigate is the Constitution itself. Article I, section 9 of the document states:
No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another.
In this instance, it is clear that “commerce” is being used in a very narrow sense. Stylistically, a broad definition does not fit. In his book Restoring the Lost Constitution, Randy Barnett writes:
[W]e 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 another’ is too awkward to be an accurate translation.
And in an article printed in the Virginia Law Review entitled The Proper Scope of the Commerce Power, Richard A. Espstein writes that in this instance:
...'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.’
If the appearance of the term “commerce” in Article I, Section 9 of the Constitution does clarify its strict and limited meaning, the numerous mentions of it in the Federalist Papers ought to. Throughout The Federalist—penned as a defense of the Constitution by Alexander Hamilton, James Madison and John Jay—the word “commerce” is used interchangeably with the word “trade.” Moreover, I have yet to find one instance in which the term conveys a broader meaning. In fact, it is often contrasted—not equated with—activities such as manufacturing and agriculture.
In Federalist 17, for example, Hamilton compiles two lists. The first is made up of duties delegated to the federal government. The second is comprised of regulations left up to the states. According to Hamilton, the “powers necessary” to regulate “Commerce, finance, negotiation, and war” are “lodged in the national depository.” But “the supervision of agriculture and of other concerns of a similar nature” remains in the jurisdiction of individual states. In this instance, Hamilton clearly displays a narrow understanding of “commerce” as something separate and distinct from agriculture.
In Federalist 11, Hamilton argues that if the thirteen colonies unite, “commerce” with other nations will be less likely to become stagnant:
[Commerce] 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. Particular articles may be in great demand at certain periods, and unsalable at others; but if there be a variety of articles, it can scarcely happen that they should all be at one time in the latter predicament, and on this account the operations of the merchant would be less liable to any considerable obstruction or stagnation. The speculative trader will at once perceive the force of these observations, and will acknowledge that the aggregate balance of the commerce of the United States would bid fair to be much more favorable than that of the thirteen States without union or with partial unions.
In this instance, Hamilton clearly equates “commerce” with “trade.” His specific mention of “fluctuations of markets” and “the operations of the merchant” make clear his view that commerce is associated with the purchase and sale of goods. He does not understand the term “commerce” as extending to manufacturing or agriculture. In fact, Hamilton’s use of the word “commerce” cannot possibly refer to anything but trade. For, as he points out, a state may produce a product that is in high demand at one time and lower demand at another. This “fluctuation” of the market greatly impacts a state’s “commerce”—or its ability to trade—but it does not limit the state’s ability to manufacture goods.
In Federalist 21, Hamilton portrays commerce as utterly unique from various other forms of “gainful activity":
The wealth of nations depends upon an infinite variety of causes. Situation, 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, these circumstances and many more...
Likewise, in Federalist 42, Madison argues that because the current Confederacy is unable to regulate commerce, “States which import and export through other States” are subject to harsh tariffs “levied on them by the latter.” He sees this as problematic because it places unfair duties on both “the makers” and “the consumers”—neither of whom is involved in the interstate trading of such goods. Madison continues:
[T]he desire of the commercial States to collect, in any form, an indirect revenue from their uncommercial neighbors, must appear not less impolitic than it is unfair.
He explains that it is wrong for “commercial States”—those who do partake in the act of commerce—to place tax burdens upon their “uncommercial neighbors,” namely manufacturers, farmers, and consumers who do not partake in the act of commerce.
Toward the end of his life, Madison summed up the founders view of the meaning of the term “commerce” when he observed:
If, in citing the Constitution, the word trade was put in 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 (See Barnett Page 289).
Determining how the founding fathers understood the term “commerce” is relatively uncomplicated albeit tedious task. The framers of the Constitution were the era’s most iconic figures and most wrote extensively. The views that they held are on display in their many publications. Unlocking the meaning that “commerce” held for the general populist, however, is a far more difficult undertaking.
In Restoring the Lost Constitution, Randy Barnett uses two main sources to extract the public’s understanding of “commerce.” He first employs the use of contemporary dictionaries. He quotes Samuel Johnson’s 1785 edition of Dictionary of the English Language, which defines commerce as:
Intercourse; exchange of one thing for another; interchange of anything; trade; traffick.
Barnett contrasts this with terms that proponents of a loose textual reading often assert fall under commerce:
“[M]anufacture” is defined as “1. The practice of making any piece of workmanship. 2. Anything 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 predominately to exchange or trade as distinct from the agricultural or manufacturing production of those things that are subsequently traded.
Johnson is accurate. In Defining the World: The Extraordinary Story of Dr. Johnson’s Dictionary, Henry Hitchings writes:
For Americans in the second half of the eighteenth century, Johnson was the seminal authority on language.
When attempting to understand how a certain culture defines a given word, one of the most reliable places to look is a publication that defines the words used by that culture. Contemporary dictionaries do just that. And of the dictionaries available in America during the end of the eighteenth century, Johnson’s was the most recognized and the most well respected.
Although Johnson’s Dictionary gives us some insight into the meaning that the word “commerce” held at the time of the nation’s birth, we cannot conclude with complete certainty that its definition is representative of the general public’s understanding. Words are often understood differently when used in colloquial speech than when formally defined. So to truly grasp the mainstream usage the word “commerce,” it is imperative to find writings that closely reflect the dialect used by common citizens. For this, Barnett uses the Pennsylvania Gazette, a popular eighteenth century newspaper. Clarence S. Brigham writes of the Gazette:
[I]n its essential character, although not in its universal longevity… [it] was representative of the great majority of the newspapers of the provincial period (See Barnett Page 290).
Newspapers articles are generally written in common vernacular because—in an attempt to reach a larger audience—they are often marketed toward the common citizen. In his research, Barnett unearthed all 1,594 appearances that the word “commerce” makes in the Gazette between 1728 and 1800. On the whole, he found that it was used to “refer to trade or exchange, including shipping.” Nowhere is this more evident than in a 1787 reference in which the writer explicitly denotes:
[B]y commerce I mean the exports as well as the imports of a country… (See Barnett Page 290).
Barnett goes on to show that—similar to the founders—the Gazette often contrasts commerce with activities such as manufacturing and agriculture. One Gazette article states:
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 workings 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.
This one quote clearly exemplifies the general understanding that commerce is distinctly different for the production or cultivation of goods.
Commerce means trade.
At very most, it includes the navigation of goods being traded. The founders abided by this narrow definition. Their writings and—most importantly—the Constitution itself, attest to their view. The general public also understood commerce as being distinctly different from other “gainful activities.” Contemporary dictionaries and publications serve as the voice of the colonial era. An overwhelming amount of evidence indicates that a board definition of the term commerce was uncommon and possibly nonexistent at the birth of the nation.
Now that we have identified how the earliest Americans understood the word "commerce," we must find the original meaning of the rest of the Commerce Clause. In our next installment of this series of 8 blogs, we will examine the phrases "to regulate" and "among the several states." We will look at how these phrases were understood by our founders and the general public at the time of the ratification of the United States Constitution.