Original Understanding of the Commerce
by Jon Roland
Most federal criminal legislation is based on either the tax or commerce
clauses, but competent historians of the Founding Era will find that these
clauses do not authorize criminal legislation.
For the term "commerce" we can disaggregate the bundle of elements it
might include and examine usage to determine which of the elements were
included in original understanding:
1. Tangible articles.
2. Transfer of ownership.
3. Transfer of location.
4. Transfer of possession.
5. Direct services, securities, money, publications, power, etc.
6. Exchange for a valuable consideration.
7. Primary production (farming, fishing, hunting, mining, etc.)
9. Transport services.
14. Those engaged in the process.
15. The practices of those engaged in the process.
16. The impacts of the practices of those engaged in the process, such
as "interference" in the practices conducted by others, or intermingling of the
process with other kinds of process.
17. A "stream" of such processes which might include non-qualifying
My research of instances of use in what became the United States finds only that "commerce among the states" meant "transfer for a valuable consideration of ownership and possession of a tangible commodity from a vendor in one state to a customer in another."
The word "commerce" was almost never used in common parlance in the colonies or newly independent states. A search of newspapers, speeches, and letters of that time and place finds few instances of it. The word is originally French, and we have this from Emmerich de Vattel, in his Law of Nations (1758), Book I § 92:
... commerce consists in mutually buying and selling all sorts of commodities.
Vattel was well-known and often cited by the Founders.
In other words, interstate commerce would not, for example, include a sale from someone in Lower Michigan to someone in Upper Michigan that happened to be delivered via Illinois. I have also found as objects of such regulation, aggregation only up to the level of single shipments of multiple units, not some "stream" that might include non-qualifying objects.
As originally understood, interstate "commerce" did not include primary
production, such as farming, hunting, fishing, or mining. It did not include
services, securities, or communication. Nor did it include manufacturing,
transport, retail sales, possession, use, or disposal of anything. It did not
include anything that might have a "substantial effect" on commerce, or the
operations of parties not directly related to the actual transfers of ownership
It also did not include all "traffic". There is an implied power to
regulate traffic to the extent necessary to separate commercial traffic from
noncommercial, such as to require that traffic move through ports of entry and
be subject to inspection, but once noncommercial traffic is identified as such
it is no longer constitutionally subject to regulation. However, carrying human
passengers would not qualify as commercial traffic, even through it might be
done for hire, because humans are not tangible commodities being traded —
with the temporizing exception of slaves until the logical imcompatibility of
slavery with the language of the Constitution could be resolved.
The decision in Gibbons was
correct, but the justification in the opinion was not. The authority for
regulating coastal traffic rests on the Defense Clause, which implies the power
to control entry onto the territory of the nation and the approaches to it. See
my commentary at http://www.constitution.org/ussc/022-001jr.htm.
Further, as originally understood, the power to "regulate" was not the
power to prohibit, nor did it imply the power to impose criminal penalties for
violations. While a "regulation" might be considered as the prohibition of some
modalities of something, like packaging, labeling, handling, routing, or
scheduling, it could not be prohibition of all modalities. There must always be
some modalities that are permitted. The restriction must be reasonable, and
must serve a public purpose, and not favor one segment of the market over
Further, I find no instances where "necessary and proper for carrying
into Execution the foregoing Powers" meant "convenient for achieving any
purpose for which the powers might be exercised". It was recognized that many
delegations of powers would not be sufficient for many purposes for which they
might be exercised, but the delegation was only to exercise the power within
its bounds, not to do whatever it might take to accomplish a goal.
Similarly, as originally understood, the power to tax did not imply the
power to impose criminal penalties for violations, only civil penalties, such
as fines, or forfeitures of the actual property on which taxes had not been
Today, judicial proceedings in which the petitioner seeks punitive
deprivations of property, such as fines, is treated in criminal court rather
than civil, even though, inconsistently, courts will treat punitive damages, in
rem forfeitures, or deprivations of privileges, as "civil". But in the Founding
Era, "crimes" were acts punishable by deprivations of life, limb, or liberty.
"Limb" was a term of art that meant corporal punishment.
The original Constitution delegated authority to the national government
to punish as crimes, committed on state territory, only a limited number of
subjects: (1) treason (Art. III Sec. 3 Cl. 2); (1) counterfeiting (Art. I Sec.
8 Cl. 6); (3) piracy or felonies on the high seas; (4) offenses against the
"laws of nations" (Art. I Sec. 8 Cl. 10); or (5) violations of discipline by
military or militia personnel (Art. I Sec. 8 Cl. 14). This was emphasized in
constitutional ratifying conventions, and again in the Kentucky Resolutions of
1798, authored by Thomas Jefferson, although he omitted the last one. See
As originally understood, the "Necessary and Proper" clause (Art. I Sec.
8 Cl. 18), only implied powers to administer delegated powers, not all powers
that might be useful or convenient to achieve a purpose for which the delegated
powers might be exercised. It may be necessary and proper to hire workers,
build buildings and equipment, and issue paperwork, but not to pressure or
penalize someone for not doing something the government does not have the power
to do directly.
In general, the powers to "tax", "borrow", "regulate", "establish",
"promote", "secure", "constitute", "declare", "grant", "provide", "make rules",
"prohibit", and "punish", were all distinct, none implied by another. Thus, it
is not correct to imply a power to punish (disable a right of life, limb or
liberty) from a power to tax or regulate. The only delegation of what are
called "police powers" was confined to parcels of territory ceded to the
exclusive legislative jurisdiction of Congress under Art. I Sec. 8 Cl. 17, such
as the District of Columbia, and things like arsenals, dockyards, etc. Although
many such "federal enclaves" have been created since the Constitution was
adopted, they are limited in extent. See "Jurisdiction over Federal Areas
within the States — Report of the Interdepartmental Committee for the
Study of Jurisdiction over Federal Areas within the States" (1956), at
It has been held by some that Congress also has police powers on federal
territory that has not been admitted as a state, under Art. IV Sec. 3 Cl. 2,
but historical analysis indicates this clause only authorized Congress to
organize such territories, and that any police powers had to arise from local
governments that it might create, not from Congress directly. The model for
this is the 1787 Northwest Ordinance, see
It is important to understand that as originally understood, such
territorial jurisdiction was strictly limited. By the laws of nations doctrine,
a criminal offense was "committed" under the exclusive jurisdiction of the
sovereign of the territory where the offender was at the moment the
irreversible act was united with criminal intent. See the treatise Conflict
of Criminal Laws, Edward S. Stimson (1936) at
. In recent decades there has been a "jurisdiction creep" and assertions of
"extraterritorial jurisdiction" over criminal offenses, but that is
It is often argued that court precedents do not support the above
interpretations, and that courts are bound by the doctrine of stare
decisis to make their decisions primarily on the basis of the most recent
precedents, rather than always returning to the black letter law, especially
the Constitution, and to historical analysis of what the lawgivers meant by the
words they chose. It is argued that "stability" of the law is more important
than conformity to "original understanding". The problem with that doctrine is
that it conflicts with the main reason why the Founders adopted a written
constitution, rather than relying on the unwritten constitution that had been
the tradition in Britain. Written constitutions were to get away from the drift
into absurdity that often result when chains of precedent are allowed to drift
away from some original, fixed, fundamental law. Stare decisis has a limited
role in clarifying the fuzzy boundaries of the black letter law, but only after
historical and textual analysis has been exhausted, and not to depart from the
original meaning or to make "informal amendments" to the written law,
especially to written constitutions.
At the moment, most federal criminal legislation is unconstitutional if
applied to offenses committed on state territory, or on the territories of
foreign nations. Some of it, which conflicts with the rights recognized in the
Constitution, including the unenumerated rights of the Ninth Amendment, are
unconstitutional everywhere, even in federal enclaves. This particularly
applies to federal directives and regulations applied to persons not under
contractual supervision of a federal official. It is a violation of Art. I Sec.
1 to delegate to administrative agencies the power to make rules for ordinary
civilians that amount to statutes. Agencies may only exercise what is called
the "ordinance power" over employees, some contractors, visitors to government
proprietary facilities, or users of government assets, and except for military
or militia personnel in actual service, the only penalties that may be imposed
are termination of the contract and loss of the privileges enjoyed under that
contract. The importance of this point can be seen in the fact that most of the
penal and tax code consists of administrative regulations and not statutes.
Now, you may not find in the recorded ratification debates explicit
analysis of the kind presented above, but, when combined with historical
analysis of word usage and practice, one can certainly infer it, especially if
one is not unduly influenced by an agenda that favors some government action.
The job of historians includes the duty to ruthlessly examine one's own agendas
and preferences and reject their influence on historical and legal judgment.
Any conscientious and competent historian approaching the current state
of constitutional law confronts what can only be called tyranny, in the
original sense of the exercise of unlawful power. Such powers might be popular
with some constituent groups, but we must all realize that anyone who takes an
oath to "preserve, protect, and defend" the Constitution is in immediate
conflict with the established legal order, and that oath obliges the oathtaker
to actively resist the usurpations, perhaps even with deadly force, the
usurpations that so many have ignorantly come to accept.
For more on this topic see