By Kyle Roberts
As a result of improper constitutional interpretation and verbal legal maneuvering, the original understanding of the clause and its operation has been totally lost.
I have written elsewhere that the proper source for grasping original understanding of the Constitution is the ratification debates in the several State conventions.
With few exceptions virtually every article, clause, word, and consequence was discussed throughout the several conventions.
Yet the commerce clause, by virtue of the economic circumstances and necessities that brought on the 1787 convention, is one such exception. It received almost no attention throughout the several state conventions.
It is therefore necessary to understand the eighteenth-century legal usage of the word commerce in order to grasp its original implications and explanation within the textual structure of the Constitution.
What follows will be a brief legal history of the eighteenth-century meaning of commerce; a breakdown of the structure and layout of Article 1 Section 8 and the structure of granted powers in the Constitution; modern interpretations of commerce and how they stack up against the original; rules of construction for interpreting the Constitution; and how the commerce clause limited the power of the Federal government to interfere with local State operations.
“COMMERCE” IN THE 18TH CENTURY
Since the Constitution was in a large way framed by lawyers, ratified by lawyers, debated by lawyers, and became supreme law upon ratification it is important for our understanding that we know the legal meaning of the word commerce, not just the ordinary every day use of the term – then or now.
When speaking of prominent eighteenth-century legal writings most today are familiar with William Blackstone and Sir Edward Coke (pronounced “Cook”). But works we are not familiar with today were not necessarily obscure then.
A Census Of Law Books In Colonial Virginia by William Hamilton Bryson found more copies of D’Anvers Abridgment than copies of Blackstone’s Commentaries.
Additionally, from the seeming deluge of legal writings coming from England a reasonably well informed eighteenth-century colonist did not have to have a formal legal education to understand the law.
Here is a summary list of common legal treatises and dictionaries of the time:
Dictionaries included Giles Jacobs New Law Dictionary; Wyndham Beawes Lex Mercatoria, and Charles Molloy’s De Jure Maritimo.
Law treatises were written by Thomas Wood, Henry Finch, John Fortescue, Matthew Bacon, John Comyns, Knightly D’anvers, William Nelson, and Charles Viner.
Legal works of the time made a clear distinction between production and trading or exchange. A sample of only two works is sufficient to lay down the basis for the legal understanding of commerce.
Wyndham Beawes Lex Mercatoria (Merchant Law) defines an Artificer as those who used their art (skill) to create, manipulate, and provide products. Whereas he defines commerce as circulation and exchange of commodities among merchants; it is an exchange of commodities.
Charles Molloy’s De Jure Maritimo (Maritime Law) is similar. He defines artificer as manufacturers and those who produce goods. Conversely, merchants are those professionally engaged in commerce.
The separation made here is between those things which are in commerce and those things which are not. It is a separation between a manufacturer (artificer) and a trader (merchant).
The merchant takes things which are — usually — made by others and exchanges on the market with other merchants who are also exchanging items made by others.
Whereas an artificer — farmer, manufacturer, tradesman, professional service — creates the goods. His work is not in commerce. Rather, it is in production.
STRUCTURE OF ARTICLE 1 SECTION 8
Each clause of section eight is structured according to specific rules of syntax. These rules create a system of limitations which play a crucial role in how the various phrases are to be interpreted.
It is arranged as follows: the Power is first stated, then limited with qualifiers — or limitations — if necessary.
Madison explained this in Federalist 41:
“A specification of the objects alluded to by these general terms, immediately follows. Nothing is more natural or common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars, which neither explain nor qualify the general meaning, can have no other effect than to confound and mislead.”
In example, clause twelve says, “To raise and support armies; But no appropriation to that use shall be for a longer term than two years.”
The power, “To raise and support armies,” is first stated and is followed by a qualification of the particular use of that power.
Whereas clause seven has no qualifier but is a singular grant of power: “To establish post office and post roads.”
3 TYPES OF QUALIFIERS
Within the Constitution there are three different types of qualifiers, or limitations. First, internal limitations.
The best example of this is clause seventeen establishing congressional supremacy over the Capital. However, since it is a little more involved, clause four will be sufficient.
Clause four says,
“To establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States.”
The internal limitation is the word uniform. Otherwise it would simply be a blank check to regulate the bankruptcy, immigration, and naturalization laws of each state severally.
Second, partial external limitations. These are limitations that come after the grant of power is stated — as in clause twelve with armies — but are still located in section eight. Clauses one, three, twelve, fifteen, sixteen, and eighteen are all examples of this type of limitation.
Here is clause eight:
“To promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
The power granted is to promote the progress of science and useful arts. But that power is limited to patents and copyrights. Grants of any kind out of the public purse are absolutely unconstitutional.
The power to promote science and art is limited by a partial external limitation which limits congress, or party interests, from using public money to support their pet institutions and doctrinaires.
Last, external limitations. These are grants of power and limitations found outside section eight – mostly in Section Nine and Article Four (though they exist in all other Sections).
The commerce clause falls under the partial external limitation group.
The power is granted: “To regulate commerce.” However, they did not leave off there as in the power to establish post offices and post roads. They attached a limitation to the power to regulate commerce — or the activity of merchants and traders — to “foreign nations, and among the several states, and with the Indian Tribes.”
Nowhere is power expressly granted to regulate commerce within the several states.
Kyle Roberts is a small business owner who has committed his life to the cause of freedom. He is dedicated to recreating strong local self-government in his community by creating, and helping others create, institutions that create and preserve freedom.
He teaches a four-part lecture series on the Original Understanding of the Constitution for free to the community.
Kyle and his wife Kim own and operate Prudent Living Food Storage. They live in Spanish Fork, Utah with their two children.