Original Understanding of the Commerce Clause
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.)

8. Manufacturing.

9. Transport services.

10. Sale.

11. Possession.

12. Use.

13. Disposal.

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 objects.

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 and possession.

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 //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 another.

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 paid.

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 //constitution.org/rf/kr_1798.htm .

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 //constitution.org/juris/fjur/fed_jur.htm .

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 //constitution.org/cons/northwes.htm .

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 //constitution.org/cmt/stimson/con_crim.htm . In recent decades there has been a "jurisdiction creep" and assertions of "extraterritorial jurisdiction" over criminal offenses, but that is unconstitutional.

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.

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Maintained: Jon Roland of the Constitution Society
Original date: 2002/7/29 —