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What is the Original Intent!and True Meaning of the “Commerce!Clause”?
Consider the following parts of the “ORDER GRANTING SUMMARY JUDGMENT” by Judge Roger Vinson, of the UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA, PENSACOLA DIVISION, in Case No.: 3:10-cv-91-RV/EMT – Jan. 31, 2011.
[We encourage you to read the entire opinion and the referenced documents cited therein.]
Judge Vinsonʼs Analysis starts on page 19 and continues through page 37 of 78 in his Order. …
“The Commerce Clause is a mere sixteen words long, and it provides that Congress shall have the power:
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes. U.S. Const. art I, § 8, cl. 3. …
There is considerable historical evidence that in the early years of the Union, the word “commerce” was understood to encompass trade, and the intercourse, traffic, or exchange of goods; in short, “the activities of buying and selling that come after production and before the goods come to rest.” …
In a frequently cited law review article, one Constitutional scholar has painstakingly tallied each appearance of the word “commerce” in Madisonʼs notes on the Constitutional Convention and in The Federalist [Papers], and discovered that in none of the ninety-seven appearances of that term is it ever used to refer unambiguously to activity beyond trade or exchange. … (further examining each and every use of the word that appeared in the state ratification convention reports and finding “the term was uniformly used to refer to trade or exchange”). Even a Constitutional scholar who has argued for an expansive interpretation of the Commerce Clause (and, in fact, has been cited to, and relied on, by the defendants in this case) has acknowledged that when the Constitution was drafted and ratified, commerce “was the practical equivalent of the word ʻtrade.ʼ” See Robert L. Stern, That Commerce Which Concerns More States than One, 47 Harv. L. Rev. 1335, 1346 (1934) (“Stern”).
The Supreme Courtʼs first description of commerce (and still the most widely accepted) is from Gibbons v. Ogden, [22 U.S. (9 Wheat.) 1 (1824)], which involved a New York law that sought to limit the navigable waters within the jurisdiction of that state. In holding that “commerce” comprehended navigation, and thus it fell within the reach of the Commerce Clause, Chief Justice Marshall explained that “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.” 22 U.S. at 72. This definition is consistent with accepted dictionary definitions of the Foundersʼ time. See 1 Samuel Johnson, A Dictionary of the English Language (4th ed. 1773) (commerce defined as “Intercourse; exchange of one thing for another; interchange of any thing; trade; traffick”). And it remained a good definition of the Supreme Courtʼs Commerce Clause interpretation throughout the Nineteenth Century. See, e.g., Kidd v. Pearson, 128 U.S. 1, 20- 21, 9 S. Ct. 6, 32 L. Ed. 346 (1888) (“The legal definition of the term [commerce] . . . consists in intercourse and traffic, including in these terms navigation and the transportation and transit of persons and property, as well as the purchase, sale, and exchange of commodities”).
As Alexander Hamilton intimated in The Federalist, however, it did not at that time encompass manufacturing or agriculture. See The Federalist [Papers] No. 34, at 212-13 (noting that the “encouragement of agriculture and manufactures” was to remain an object of state expenditure).This interpretation of commerce as being primarily concerned with the commercial intercourse associated with the trade or exchange of goods and commodities is consistent with the original purpose of the Commerce Clause (discussed immediately below), which is entitled to “great influence in [its] construction.” See Gibbons, supra, at 188-89 11 [Note; the original “foot note 11” is presented in full at the end of this paper and is incorporated herein by reference.]
There is no doubt historically that the primary purpose behind the Commerce Clause was to give Congress power to regulate commerce so that it could eliminate the trade restrictions and barriers by and between the states that had existed under the Articles of Confederation. Such obstructions to commerce were destructive to the Union and believed to be precursors to war.
Consider the following parts of the “ORDER GRANTING SUMMARY JUDGMENT” by Judge Roger Vinson, of the UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA, PENSACOLA DIVISION, in Case No.: 3:10-cv-91-RV/EMT – Jan. 31, 2011.
[We encourage you to read the entire opinion and the referenced documents cited therein.]
Judge Vinsonʼs Analysis starts on page 19 and continues through page 37 of 78 in his Order. …
“The Commerce Clause is a mere sixteen words long, and it provides that Congress shall have the power:
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes. U.S. Const. art I, § 8, cl. 3. …
There is considerable historical evidence that in the early years of the Union, the word “commerce” was understood to encompass trade, and the intercourse, traffic, or exchange of goods; in short, “the activities of buying and selling that come after production and before the goods come to rest.” …
In a frequently cited law review article, one Constitutional scholar has painstakingly tallied each appearance of the word “commerce” in Madisonʼs notes on the Constitutional Convention and in The Federalist [Papers], and discovered that in none of the ninety-seven appearances of that term is it ever used to refer unambiguously to activity beyond trade or exchange. … (further examining each and every use of the word that appeared in the state ratification convention reports and finding “the term was uniformly used to refer to trade or exchange”). Even a Constitutional scholar who has argued for an expansive interpretation of the Commerce Clause (and, in fact, has been cited to, and relied on, by the defendants in this case) has acknowledged that when the Constitution was drafted and ratified, commerce “was the practical equivalent of the word ʻtrade.ʼ” See Robert L. Stern, That Commerce Which Concerns More States than One, 47 Harv. L. Rev. 1335, 1346 (1934) (“Stern”).
The Supreme Courtʼs first description of commerce (and still the most widely accepted) is from Gibbons v. Ogden, [22 U.S. (9 Wheat.) 1 (1824)], which involved a New York law that sought to limit the navigable waters within the jurisdiction of that state. In holding that “commerce” comprehended navigation, and thus it fell within the reach of the Commerce Clause, Chief Justice Marshall explained that “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.” 22 U.S. at 72. This definition is consistent with accepted dictionary definitions of the Foundersʼ time. See 1 Samuel Johnson, A Dictionary of the English Language (4th ed. 1773) (commerce defined as “Intercourse; exchange of one thing for another; interchange of any thing; trade; traffick”). And it remained a good definition of the Supreme Courtʼs Commerce Clause interpretation throughout the Nineteenth Century. See, e.g., Kidd v. Pearson, 128 U.S. 1, 20- 21, 9 S. Ct. 6, 32 L. Ed. 346 (1888) (“The legal definition of the term [commerce] . . . consists in intercourse and traffic, including in these terms navigation and the transportation and transit of persons and property, as well as the purchase, sale, and exchange of commodities”).
As Alexander Hamilton intimated in The Federalist, however, it did not at that time encompass manufacturing or agriculture. See The Federalist [Papers] No. 34, at 212-13 (noting that the “encouragement of agriculture and manufactures” was to remain an object of state expenditure).This interpretation of commerce as being primarily concerned with the commercial intercourse associated with the trade or exchange of goods and commodities is consistent with the original purpose of the Commerce Clause (discussed immediately below), which is entitled to “great influence in [its] construction.” See Gibbons, supra, at 188-89 11 [Note; the original “foot note 11” is presented in full at the end of this paper and is incorporated herein by reference.]
There is no doubt historically that the primary purpose behind the Commerce Clause was to give Congress power to regulate commerce so that it could eliminate the trade restrictions and barriers by and between the states that had existed under the Articles of Confederation. Such obstructions to commerce were destructive to the Union and believed to be precursors to war.
