The Original Meaning of the Commerce Clause
Copyright (c) 2001 University of Chicago
University of Chicago Law Review - Winter, 2001 - 68 U. Chi. L. Rev. 101
I. Original
Meaning and Interpretation
A. Original Meaning vs. Intent
B. Interpretation vs. Construction
II. The
Original Meaning of "Commerce"
A. Originalist Sources
1. The text.
2. Contemporary dictionaries
3. Constitutional Convention
4. The Federalist Papers
5. Ratification conventions
B. Judicial Interpretations of Commerce, 1824-1935
C. Academics Dispute the Original Meaning of Commerce
III. The Original Meaning of "among the several States" and "To regulate"
A. The Meaning of "among the several States"
1. Originalist evidence
2. The original meaning of "among the states" independently limits the federal commerce power
3. Commerce "concerning more than one state" is too broad a construction of the original meaning of "among the several States."
B. The Meaning of "To regulate"
1. The power to regulate does not generally include the power to prohibit
2. The power "to regulate" might sometimes include the power "to prohibit."
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The U.S. Supreme Court, in
recent cases, has attempted to define limits on the Congress's power to
regulate commerce among the several states. While Justice Thomas has maintained
that the original meaning of "commerce" was limited to the "trade
and exchange" of goods and transportation for this purpose, some have
argued that he is mistaken and that "commerce" originally included
any "gainful activity." Having examined every appearance of the word
"commerce" in the records of the Constitutional Convention, the
ratification debates, and the Federalist Papers, Professor Barnett finds no
surviving example of this term being used in this broader sense. In every
appearance where the context suggests a specific usage, the narrow meaning is
always employed. Moreover, originalist evidence of the meaning of "among
the several States" and "To regulate" also supports a narrow
reading of the Commerce Clause. "Among the several States" meant
between persons of one state and another; and "To regulate" generally
meant "to make regular"--that is, to specify how an activity may be
transacted--when applied to domestic commerce, but when applied to foreign
trade also included the power to make "prohibitory regulations." In
sum, according to the original meaning of the Commerce Clause, Congress has
power to specify rules to govern the manner by which people may exchange or
trade goods from one state to another, to remove obstructions to domestic trade
erected by states, and to both regulate and restrict the flow of goods to and
from other nations (and the Indian tribes) for the purpose of promoting the
domestic economy and foreign trade.
In United States v Lopez1, for the first time in sixty years, the Supreme Court of the United States held a statute to be unconstitutional because it exceeded the powers of Congress under the Commerce Clause2. In his concurring opinion, Justice Thomas offered a critique of contemporary Commerce Clause doctrine--based on the original meaning of the clause--that went well beyond the majority opinion. According to Justice Thomas, "at the time the original Constitution was ratified, 'commerce' consisted of selling, buying, and bartering, as well as transporting for these purposes."3 He also cited the etymology of the word, which literally means "with merchandise."4 He then noted that "when Federalists and Anti-Federalists discussed the Commerce Clause during the ratification period, they often used trade (in its selling/bartering sense) and commerce interchangeably."5 The term "commerce," according to Justice Thomas, "was used in contradistinction to productive activities such as manufacturing and agriculture."6
In his opinion, Justice Thomas endorsed the view of the meaning of "commerce" that the Supreme Court of the Progressive Era used to strike down various regulations of economic activity7. In cases such as United States v E.C. Knight Co8, the Court distinguished "commerce" from manufacturing or agriculture, and held that the regulation of either manufacturing or agriculture exceeded the powers of Congress under the clause9.
Referring to "what legal historians with proper derision call 'law office history,'" Judge Richard Posner cited Justice Thomas's concurrence as an example of "highly debatable historical excursus by originalist judges."10. Justice Thomas's conception of the original meaning of the Commerce Clause has also been challenged in a lengthy article by Professors Grant Nelson and Robert Pushaw, Jr.11. They examine "the original meaning, intent, and understanding"12 of the Commerce Clause and reach the conclusion that commerce originally referred to any "gainful activity."13 As such it would embrace all manufacturing and agriculture in addition to trade and exchange.
In their article, Nelson and Pushaw rely "heavily"14 upon the two earlier works of scholarship that had challenged the Progressive Era Court's limited conception of commerce: The Power to Govern by Walton Hamilton and Douglass Adair15 and Politics and the Constitution in the History of the United States by William Crosskey16. Though recognizing the many well-documented deficiencies in Crosskey's work, they state their agreement "with those scholars who have found Crosskey's evidence persuasive in establishing the meaning of 'commerce,' but not his other claims (such as the supposed creation of a national government with complete legislative authority)."17
Nelson and Pushaw chide other modern scholars, such as Albert Abel18, Richard Epstein19, and Raoul Berger20 who have endorsed the narrow view--as well as Justice Thomas for relying upon them--for ignoring the "massive eighteenth-century linguistic and historical evidence demonstrating that the Commerce Clause had a far broader scope,"21 claiming that "the Thomas/Epstein/Berger approach is historically unsound."22 They contend that "the argument that the original meaning of 'to regulate commerce' was 'to govern all gainful activity' has never been refuted, and our independent research has corroborated it."23
Now that in United States v Morrison24 the Court has found another statute to be unconstitutional because it exceeded Congress's power under the Commerce Clause25, it appears that the Court is serious about finding some limit on the power to regulate commerce among the states. It is, therefore, well worth considering whether the narrow view of the Commerce Clause held by the Progressive Era Supreme Court, by Justice Thomas, as well as by Albert Abel, Richard Epstein, and Raoul Berger is as "historically unsound" as Nelson and Pushaw contend.
While I agree with much in Nelson and Pushaw's nuanced article26, I will present evidence here that strongly indicates that they, Crosskey, and Hamilton and Adair are wrong with respect to the original meaning of the term "commerce" in the Commerce Clause. Indeed, when I first read Hamilton and Adair and Crosskey, alongside Nelson and Pushaw's endorsement of their work, I too was persuaded that "commerce" meant any "gainful activity"--until I had a chance to survey the records of the Constitutional Convention and the ratification debates for myself. When I did, I found to my surprise that the term "commerce" was consistently used in the narrow sense and that there is no surviving example of it being used in either source in any broader sense. The same holds true for the use of the word "commerce" in The Federalist Papers.
Upon discovering this, I returned to The Power to Govern and noticed for the first time that Hamilton and Adair omitted any reference to the use of the term "commerce" in the Philadelphia or ratification conventions, though they offered evidence from these sources for other claims27. I was not surprised that Crosskey had omitted this evidence since he explicitly signaled his intention to ignore evidence from the drafting process. "The samples of word-usage and juristic and political discussion . . . will . . . all be drawn . . . from sources not connected with the Constitution."28 Only after examining this evidence, however, did I discover just how convenient this deliberate omission was for Crosskey's thesis. Unfortunately, Nelson and Pushaw do not fill this gap.
After discussing the evidence concerning the meaning of "commerce," I will present evidence on the meaning of the terms "among the states" and "To regulate." Here I am in more agreement with Nelson and Pushaw, who seem to endorse a narrower interpretation of the original meaning of these terms29, though I greatly disagree with their doctrinal implementation--or construction--of these aspects of the Commerce Clause.
Before attempting any of this, it is necessary to distinguish "original meaning" from "original intent" as methods of originalist interpretation. This distinction will assist in understanding why the evidence of meaning I present here is significant and why it is not undermined fatally by the contrary evidence relied upon by Nelson and Pushaw, Hamilton and Adair, and Crosskey. And it is also important to distinguish interpretation from construction so as to avoid asking too much of the former, or confusing the former with the latter.
Original
Meaning and Interpretation
A. Original Meaning vs. Intent
As I have explained elsewhere30, "original meaning" refers to the meaning a reasonable speaker of English would have attached to the words, phrases, sentences, etc. at the time the particular provision was adopted. It is originalist because it disregards any change to that meaning that may have occurred in the intervening years. It is objective insofar as it looks to the public meaning conveyed by the words used in the Constitution, rather than to the subjective intentions of its framers or ratifiers. By contrast, "original intent" refers to the goals, objectives, or purposes of those who wrote or ratified the text. These intentions could have been publicly known--or hidden behind a veil of secrecy. They could and indeed were likely to be in conflict.
In sum, to use what Ronald Dworkin characterizes as a "crucial distinction,”31 original meaning refers to "what some officials intended to say in enacting the language they used," whereas original intent refers to "what they intended--or expected or hoped--would be the consequences of their saying it."32 If publicly known and widely accepted, these original intentions could have shaped the original meaning of terms and, for this reason, they are not completely immaterial to an originalist analysis. But, at best, evidence of the framers' and ratifiers' intentions (as distinct from evidence of how they used the words they used) is circumstantial evidence of meaning while at worst it can distract from the words of the document that were actually employed.
The method to be preferred depends on one's normative rationale for originalism. Those who believe that we must pay attention to the framers or ratifiers because they were somehow authorized (by consent or something else) to issue binding commands to the rest of the population and to their posterity may want, for this reason, to determine the intentions or objectives that lie behind their words. In contrast, those who believe that the actions of the ratifiers established a rule of law that is binding if its content is "good enough" to be legitimate33 would want to use a writing to "lock-in" that meaning and, once locked in, adhere to it unless and until it is changed in writing. In short, a commitment to original intention originalism stems from the legitimacy of the founders as command givers. In contrast, a commitment to original meaning originalism need not be based on this rationale, but instead may stem from the legitimacy of the original commands themselves and the fact these commands were made in writing34. A commitment to original meaning is, then, a crucial part of the commitment to a written constitution.
Original meaning originalism circumscribes the relevance of various types of historical evidence the way the objective theory of contract restricts the evidence relevant to determine the meaning of a written contract. With written constitutions, as with contracts, we want evidence of what the terms meant in the particular context of the written text at issue, whether a provision in the original Constitution or a later amendment. As Richard Posner has put the matter:
Sophisticated originalists . . . do not want to substitute amateurish inconclusive debates over history for professional but inconclusive debates over policy or values. They want, or at least ought to want, . . . a narrowly focused inquiry into precise and answerable questions of historical meaning of specific words and sentences, coupled with a list of "canons of construction" that will enable those historical meanings to be brought to bear on contemporary issues35.
This should lead us to prefer evidence of usage that is most closely associated with the measure's drafting and adoption. Where the chosen words had more than one established meaning, evidence of usage outside the context of drafting and ratification may mislead us as to what the particular words of a particular measure meant at the time of its enactment. Far from providing useful "context," such historical evidence may instead cloud what was otherwise a fairly clear meaning. The same is true of "contextual" evidence of the conflicting objectives or intentions of various actors. What is ultimately important is not what the framers or ratifiers intended to accomplish but what they succeeded in adopting and conveying to the public.
With original meaning, then, more "historical context" is not automatically preferred. To the contrary, originalism requires a limited focus on certain types of evidence of historical meaning: that evidence that most clearly indicates the public meaning of the text that is being interpreted at the time it was adopted. When it comes to determining original usage, dictionary definitions provide a useful start, but we must also immediately examine any clues to meaning provided in the document itself since any context it provides would directly influence the specific meaning perceived by the public when reading this text. After all, the document was far more accessible to the general public than any particular discussion of it. And it is the document that was adopted as law, not the statements of people about the document.
Where the document itself does not settle the matter, extrinsic evidence of how persons used words when discussing the particular text at issue will further narrow the scope of possible meanings36. And the more closely in time these discussions are to the document's adoption, the less likely is the chance either that the meaning of words has changed, or the speaker is seeking to deviate from the original meaning of the text. Thus, evidence of usage in the Philadelphia and state ratification conventions illuminates the original meaning of the text, provided that this usage is not shown to be secret or unknown to the general public.
Of course, where evidence of meaning closely linked to drafting and ratification is missing or inadequate, we may need to cast a wider net. In addition, evidence removed from the immediate process of drafting and ratification can confirm our evaluation of more relevant evidence or provoke us to take a closer look at what we thought was clear evidence of original meaning. But it would be improper to let conflicting evidence either before or after drafting and ratification in any way trump evidence of a clear public meaning that existed during this process.
B. Interpretation vs. Construction
It is important to keep in mind that originalism is warranted as a theory of interpretation--that is, as a method of determining the meaning of the words written in the Constitution. For better or worse, knowing the meaning of these words only takes us so far in resolving current cases and controversies. Due either to ambiguity or vagueness, the original meaning of the text may not always determine a unique rule of law to be applied to a particular case or controversy. While not indeterminate, the original meaning can be "underdeterminate."37 Indeed, because the framers frequently used abstract language, this will often be the case. When this happens, interpretation must be supplemented by constitutional construction--within the bounds established by original meaning. In this manner, construction fills the unavoidable gaps in constitutional meaning when interpretation has reached its limits.
Keith Whittington distinguishes interpretation from construction in the following manner:
Constitutional interpretation is essentially legalistic, but constitutional construction is essentially political. Its precondition is that parts of the constitutional text have no discoverable meaning. Although the clauses and structures that make up the text cannot be simply empty of meaning, for they are clearly recognizable as language, the meaning that they do convey may be so broad and underdetermined as to be incapable of faithful reduction to legal rules. . . . Regardless of the extent of judicial interpretation of certain aspects of the Constitution, there will remain an impenetrable sphere of meaning that cannot be simply discovered. The judiciary may be able to delimit textual meaning, hedging in the possibilities, but after all judgments have been rendered specifying discoverable meaning, major indeterminacies may remain. The specification of a single governing meaning from these possibilities requires an act of creativity beyond interpretation. . . . This additional step is the construction of meaning38.
He then offers a very long list of constitutional constructions adopted either by courts in their opinions or by the other branches of government in legislation or executive orders that fill the gaps in the original meaning of the text and help "transform constitutional theory into constitutional practice."39
Though the process of constitutional construction fills the gaps within original meaning, I do not share Whittington's characterization of the process of construction as "political," insofar as this term implies that construction is necessarily and always political. Use of that phrase also connotes a completely open-ended choice unguided by constitutional principle. That is not, I think, even Whittington's conception of constitutional construction. Rather, there is often a gap between abstract or general principles of the kind found in the Constitution and the rules of law that are needed to put these principles into action40. This does not mean, however, that the choice of rules is unguided by the abstract or general principles that can be ascertained by interpretation.
Many parts of the Constitution are rule-like and can often be applied directly to cases without need of intermediate doctrine41. Other provisions are abstract and general and require some choice among possible ways of putting them into effect42. Still other provisions explicitly refer to standards or principles that lie outside the text and therefore authorize supplementation of the text by other materials43. When, for these reasons, the terms of the Constitution cannot directly be applied to resolve a particular dispute, some construction, as opposed to interpretation, of constitutional meaning is required. As Whittington observes, constructions operate "where the text is so broad or so underdetermined as to be incapable of faithful but exhaustive reduction to legal rules."44
Constitutional constructions, then, are not wholly "political." The choices among possible constructions, while not dictated by original meaning interpretation, can be and often are limited by that meaning. In this way, constitutional constructions, though not identical with the text nor deduced immediately from it, are not unconnected or unconstrained by the text. The text provides what Frederick Schauer has called a "frame" that excludes many constructions without determining one unique construction that would put into action the general principles it enunciates. "The language of a constitutional clause, whether seemingly general or seemingly specific, establishes a boundary, or a frame, albeit a frame with fuzzy edges. Even though the language itself does not tell us what goes on within the frame, it does tell us when we have gone outside it."45 Therefore, though by definition constructions are not in the Constitution, they can be of the Constitution.
Apart from revealing the limits of interpretation, the distinction between interpretation and construction also helps us to understand the differing appeals of original meaning and original intent originalism. The former looks to original usage to determine the meaning of the text, though this meaning may require construction due to ambiguity and vagueness. So long as we stay within the frame provided by the original meaning of the text, our choice of specific rules to decide cases may be influenced by other considerations, such as justice or precedent, depending on what it is we think makes a constitution binding.
Some originalists, however, seek to go beyond the original meaning of the text to identify the specific constructions that would have been preferred or intended by the framers or ratifiers. Often this is done by "channeling the framers," that is, by hypothesizing what the framers would have intended had they been presented with the case at hand. I do not think that the normative case for original meaning originalism entails a commitment to construction according to the original intentions of the framers or ratifiers46. This is not to deny that some of the founders might usefully be consulted to determine a construction that best fits the underlying principles of the constitution they wrote and approved. In this manner, the framers as the designers of the Constitution become our teachers rather than our wardens47.
There is then an important distinction between determining the original meaning of text and construing that meaning, where it is vague or ambiguous, according to the original intentions of its drafters or ratifiers. In what follows, I present what I think is the best evidence of the original meaning of the Commerce Clause. How that meaning, once established, is to be construed is a different matter that I may touch upon in passing, but is not the primary focus of this Article.
II.
The Original Meaning of
"Commerce"
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"? The source of the scholarly debate lies in the fact that, unlike some other provisions of the Constitution, the evidence of "original intent, meaning, and understanding"48 is in conflict. This is because there was a clash of objectives among different supporters of the Constitution, not to mention a clash between supporters and opponents. And unlike other passages of the Constitution, each of the terms of the Commerce Power is said to have had, at the time of the founding, both an expansive and more limited meaning in common discourse (though not, as we shall see, in the context of the drafting and ratifying of the Constitution).
"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 expansively be interpreted 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 expansively be interpreted to mean "to govern," which would include prohibitions as well as pure regulations. "Among 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 expansively be interpreted to refer to commerce "among the people of the States," whether such commerce occurs between people in the same state or in different states.
Though 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.
I was surprised to find, given the degree of scholarly criticism of the narrow meaning, that 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 the broad meaning of "commerce" and many instances where the context makes clear that the speaker intended a narrow meaning.
A. Originalist Sources
1. 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. In sum, does the Constitution serve as its own dictionary on the meaning of a particular word? When considering 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. For, if we plug the broadest 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 sense. While it is true that 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 that this would exclude manufacturing and agriculture, this would not be due to any narrow meaning of "commerce," but because of the narrowing meaning 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 justice to the sentence as a whole. Therefore, while this sort of textual analysis may well reveal what the term "among the several States" means49, it 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 from 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. . . ."50 Here, as Richard Epstein has written, "the 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.'"51 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 in Article I, Section 9, the term "commerce" is, all by itself52 pretty 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.
2. 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."53 In contrast, "manufacture" is defined as "1. The practice of making any piece of workmanship. 2. Any thing made by art."54 "Agriculture" is defined as "the art of cultivating the ground; tillage; husbandry, as distinct from pasturage." n55 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. As Justice Thomas noted in his concurrence56, Johnson's definition of "commerce" is borne out by other dictionaries of the time. It is also the usage most closely associated with the drafting and adoption of the Constitution.
Nelson and Pushaw acknowledge that "trade and exchange" is the core meaning of "commerce."57 The question is whether they are right to claim that "abundant evidence demonstrates, however, that 'commerce' had other broader meanings, which a significant number of the Constitution's Framers and Ratifiers intended to incorporate."58 While their evidence showed that a number of framers and ratifiers may have desired a government powerful enough to control all aspects of the national economy, the issue is whether the term "commerce" that was chosen to describe the powers of Congress conveyed that expansive meaning to those to whom it was addressed and whether the public statements of those who supported the Constitution and favored broad national powers reflected such a meaning. If "commerce" had been used in its broad sense, we would expect this usage to appear somewhere in the records of the Constitution's drafting and ratification. But no such example exists.
3. Constitutional Convention.
In Madison's notes for the Constitutional Convention, the term "commerce" appears thirty-four times in the speeches of the delegates59. Eight of these are unambiguous references to commerce with foreign nations which can only consist 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 "to establish public institutions, rewards, and immunities for the promotion of agriculture, commerce, trades and manufactures,"60 strongly suggesting that the members understood the term "commerce" to mean trade or exchange, distinct from the productive processes that made the things to be traded.
4. The Federalist Papers.
Nor was this a secret usage confined to the Convention. In several of his contributions to The Federalist Papers, 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 States61
In Federalist 12, he referred to the "rivalship," now silenced, "between agriculture and commerce,"62 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."63 In Federalist 21, Hamilton maintained that causes of the wealth of nations were of "an infinite variety," including "situation, soil, climate, the nature of mthe 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."64 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?"65
In none of the sixty-three appearances of the term "commerce" in The Federalist Papers is it ever used to unambiguously refer to any activity beyond trade or exchange. At the time of the framing, then, for Hamilton, a proponent of broad national powers, 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."66
5. 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, rather than all gainful activity. Because people used this word to convey its accustomed meaning, they did not often define it or give contextual clues as to what they believed the term meant. Yet some of these public speeches make clear that "commerce" was used as a synonym for trade or exchange--and did not include agriculture, manufacturing, or other business--and every speech is consistent with such a meaning (though I will discuss two statements that can be misinterpreted as connoting a broader meaning of "commerce"). I shall present this evidence state by state.
In the records of the Massachusetts convention, the word "commerce" is used nineteen times--every use consistent with it 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."67 He then expounded at some length, giving separate attention to each of these activities and the beneficial effect the Constitution would have on them68. Under the heading of "commerce," he referred to "our own domestic traffic that passes from state to state."69
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."70 And making much the same point, James Bowdoin of Boston 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 inhabitants71.
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 "till lately," he said, "had neither commerce nor manufactures. They were merely a set of herdsmen."72 By contrast, in the more extensive records of the New York convention, the term appears thirty times. Governor Clinton referred to "the situation of [each state's] commerce, its agriculture, and the system of its resources."73 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!"74
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."75 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."76 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."77 As a result, "our 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."78
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."79 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. Rather, 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 means or powers granted to Congress by the Constitution to pursue these ends, such as the power of taxation and the power to regulate commerce with foreign nations or among the states80.
Referring to the same problem of knowledge, antifederalist 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 both81.
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 extremely useful because many of the quotes employed by Crosskey and others as evidence of a broader meaning actually use the term "commercial," not "commerce." Nelson and Pushaw repeatedly use the term "commercial" throughout their article as though it were synonymous with "commerce," and a great many of the sources on which they rely to establish the broader meaning of "commerce" actually use the term "commercial" instead82. While it seems reasonable at first blush to think that both terms have the same meaning, the statement by Smith undercuts this assumption by explicitly using "commercial interests" to convey a broader meaning than the term "commerce."83 In sum, 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."84
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 and a person who Nelson and Pushaw claim understood the term "'commerce' as encompassing not merely the buying and selling of goods, but also antecedent production, labor-and-wage transactions, and related business services like insurance."85 Wilson, they say, "used 'commerce' to describe all gainful activity."86 In the Philadelphia convention, however, Wilson referred to "the objects of commerce,"87 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."88 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 commerce89.
In the North Carolina debates, "commerce" is mentioned eighteen times (including two times in proposed amendments). Like elsewhere, there is no clear use of it in any sense broader than "trade" or "exchange," and there are 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; 2d, to defend us against internal commotions and insurrections; 3d, to promote the commerce, agriculture, and manufactures, of America."90 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."91 And, Davie also distinguished between the interests "of agriculture and commerce" and how the Constitution would protect just claims of "the merchant or farmer."92 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 and whose use of the term "commercial interests" Nelson and Pushaw cite as evidence of a broad meaning of the term "commerce,93 equated "the regulation of commerce" and mere "privileges with regard to shipping," when he asked, "if 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?"94 Later, he distinguished between those "people who are employed in cultivating their own lands" and "the rest [who are] in handicraft and commerce."95 And he immediately expanded upon this by discussing the different "classes" of society comprised of the "commercial men," the "professional men," those engaged in "the mechanical," and the "landed interest--the owners and cultivators of the soil."96 And although he 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."97 No other use of the term 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."98 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.99
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."100 Edmund Randolph urged members to "cast your eyes to your seaports: see how commerce languishes."101 He observed that "Virginia is in a very unhappy position with respect to the access of foes by sea, though happily situated for commerce,"102 and that "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."103 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.104
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?"105 Madison asserted that "American vessels, if they can do it with advantage, may carry on the commerce of the contending nations."106 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."107 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?"108
I present all these quotes not 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.109
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."110 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."111 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."112 This, in the absence of the evidence already presented, might suggest that these terms were not identical113. 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."114
Should there be any doubt about my interpretation of these statements, go back to the quotes 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, as Crosskey would have us do115, because they occur in partisan debate. Remember, we are not asking what purposes or intentions are being expressed by these delegates. We are just asking how they used the term "commerce." So far as these records permit us to judge, there is no conflict over the meaning of this term among the otherwise divided participants in these conventions.
From these findings, we can conclude that if anyone in the Constitutional Convention or the state ratification conventions used the term "commerce" to refer to something more comprehensive than "trade" or "exchange," they either failed to make explicit that meaning or their comments were not recorded for posterity. The evidence that survives is entirely consistent on this point and confirms the observation made by Madison late in his life that "if, 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."116
B. Judicial Interpretations of Commerce, 1824-1935
Thirty-five years after ratification, in the 1824 case of Gibbons v Ogden117, John Marshall was called upon to decide whether navigation was included in the power of Congress to regulate commerce among the states118. He held that it was. From the perspective of original intent, this holding is unremarkable. The above sources, and others unmentioned119, 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.
While 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, as was noted earlier, the etymology of the term "commerce" is "with" (com) "merchandise" (merci)120, a phrase that could accurately be applied to the "carrying trade," which is how the object of navigation laws was frequently described121. Perhaps the strongest evidence that "commerce" included navigation is in Article I, Section 9, where Congress is forbidden from enacting 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."122 Though 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 commerce123. For instance, John Rutledge of South Carolina contended that "it 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 Southern States."124 The sort of navigation act contemplated here was an "act encouraging american bottoms & seamen"125 that would incidentally raise the price of freight126 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 Virginia127. On two of these occasions, "commerce and navigation" was distinguished from "various branches of business thereon dependent"128 as well as specifically from agriculture129. 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 meaning130.
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."131 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 effects132.
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."133 This was indeed the first definition of "commerce" offered in Johnson's dictionary134. Johnson, however, defines "intercourse" as "1. Commerce; exchange" and "2. Communication: followed by with,"135 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 exchange136. 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. Though 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 trade137. 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.
During the Progressive Era, the Supreme Court rejected a broad conception of commerce as embracing any gainful activity in favor of the more limited conception of commerce as "trade and exchange" that is so uniformly reflected in the surviving records of the drafting and ratification of the Constitution (though it never hesitated to sanction the power of Congress to regulate the instrumentalities of commerce as well as commerce itself). Beginning with the 1895 case of United States v E.C. Knight Co138 and up to the 1936 case of Carter v Carter Coal Co139, 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."140 And in Carter Coal, Justice Sutherland defined "commerce" as "the equivalent of the phrase 'intercourse for the purpose of trade.'"141 "Mining" he explained, "brings the subject matter of commerce into existence. Commerce disposes of it."142 Sutherland's definition harkens 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."143
Using this distinction, 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 economy144. 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 circumstance145. More surprisingly, however, in light of the historical evidence presented here that strongly supports its usage, the Court was also harshly criticized for distorting the original meaning of "commerce."
C. Academics Dispute 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.”146 But though they pick quotes from the ratification debates reflecting the demand for stronger national governance, they reveal little of the evidence of usage also to be found there147 or in the notes of the Philadelphia convention that I have summarized here. Instead, they rely primarily on five pages of quotes 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" n148 subject only to a negative by the President. His plan was never considered, and a general grant of powers to the Congress was rejected by the Convention in favor of an enumeration. n149 Yet 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 in The Federalist Papers, 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 sense150.
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 States151. Space prevents me from considering in any detail Crosskey's indictment of the Progressive Era Court's Commerce Clause doctrines and of anyone else who disagreed with his conception of national power--especially James Madison, whom Crosskey repeatedly and without foundation accused of fabricating his notes of the debates in the Constitutional Convention152. Like Adair and Douglass, Crosskey studiously 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 (which was written at a time when the plenary power of England to govern the affairs of the colonies was politically difficult to question) 153.
I am not disputing here that "commerce" had a broad as well as a narrow meaning154, or that many before and after the Constitution strongly favored a national government powerful enough to govern all "gainful activities." I only dispute, on the basis of the evidence of usage presented here and the clash of interests that existed in the country at the time, that a government of so unlimited a power was adopted in 1789. And it is striking the degree to which these authors, whose tone is nothing if not self-righteous towards those who do not share their views, completely ignore the evidence of usage that the records of the drafting and ratification process reveal.
Even supposing these critics are right to maintain that "commerce" has a meaning as broad as any "gainful activity," however, the implications of adopting this broader meaning may be less than is commonly believed. As I shall discuss next, 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."155
III.
The Original Meaning of "among the several States" and "To regulate"
A. The Meaning of "among the several States"
1. Originalist evidence.
a) 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 adding "among the several States" (and with foreign nations and Indian tribes) is to exclude some type of commerce from the power of Congress. 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."156 Usage confirms this.
b) The Federalist Papers. 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. . . . Without 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 former157.
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 State158.
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 bank159.
Both the meaning of the term and the well-known purpose of the clause were made clear by Hamilton in The Federalist Papers. Under the Articles of Confederation, the states had "fettered, interrupted and narrowed"160 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 markets161.
c) The ratification debates. In the New York convention, John Lansing, who had been a delegate in Philadelphia, praised the Commerce Clause and complained about "the languishing situation of our commerce that has also been attributed to the impotence of Congress."162 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."163 Lansing was referring here to the 1784 Act of Congress asking the states for the power to regulate the trade between different states164. In no way did this proposed act reach commerce or trade that laid solely within any state165.
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 commerce166. 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.
d) Other commentators. Although this interpretation of "among the states" has been contested, most vigorously by William Crosskey167, there remains a scholarly and judicial consensus in favor of this as the original meaning168. Consistent with the scheme of federalism that motivated the granting of a power to regulate commerce among the states to Congress, 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 professor and jurist St. George Tucker, one of the earliest scholarly expositors on the Constitution, 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."169 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."170 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."171 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."172 But, 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."173
2. The original meaning of "among the states" independently limits the federal commerce power.
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 only regulate 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.