Constitution Class

Congressional Carte Blanche

“The Commerce Clause”

Part 2

MODERN INTERPRETAIONS OF THE COMMERCE CLAUSE

The major modern interpretations of the meaning behind the commerce clause come from two professors who wrote fifty-eight and seventy-four years ago, respectively.

The first was Walton Hamilton who in 1937 wrote, “The Power to Govern; The Constitution – Then and Now.”

He argued the commerce clause must be reinterpreted to grant Congress authority to regulate the entire national economy. He was obviously pro-Roosevelt as his efforts were aimed at giving credence and legitimacy to what Roosevelt had already done and was continuing to do.

The second, writing in 1953, was William Crosskey. He was a law professor at the University of Chicago who wrote, “Politics and The Constitution in The History of The United States.”

It was his arguments, more so than Hamilton’s, that drastically altered the legal landscape when interpreting the commerce clause.

He argued that:

1. commerce meant the whole economy, the whole system of exchange, the whole of interrelated gainful activities;
2. that “among the several states” did not mean ‘between’ but rather it meant ‘throughout’ the several states;
3. that the commerce clause authorized Congress to regulate all gainful activity throughout the nation – both inter-state and intra-state commerce.

It is these arguments that led to further arguments that flatly ignored not only the clause itself, but the legal understanding of commerce. The question was no longer is it a “commercial” interaction, but merely whether it was an economic “good.”

Modern healthcare and internet arguments fall in this line. If it is an economic “good” then it can be regulated. Therefore it should be regulated.

If the commerce clause grants Congress authority to regulate all gainful activity then the pivotal point truly is what are economic “goods” and what are not.

RULES OF CONSTRUCTION

But that is a flagrant departure from both the original understanding and the text itself.

The original understanding of commerce was briefly outlined above. (Other sources were cited to afford the reader opportunity to search it independently.)

Also noted is that this understanding was so clear it produced virtually no debate in the ratifying conventions. But for future generations, understanding proper interpretation is critical. (Thus ensuring laws made must be necessary and proper.)

Accordingly, there were numerous rules of construction by which a legal document in the eighteenth-century — in this case the Constitution — were both written and interpreted.

A few samples:

• It should be interpreted according to the intent of the makers – or the Ratifiers – this (rather than ambiguous statements before during or after the 1787 convention) is what is called the “Spirit” of the document.
• Every word must have meaning and force. There can be no large or small chunks of meaningless text. This means that the more excess words created by a particular interpretation, the less it could be relied on as accurate.

• If certain things are named, there can be no implication that unnamed things were included.

Of course there are others. Our inquiry concerns mostly the second bullet point. This is also called the Textual Surplus Rule. If a certain interpretation of any one clause renders any other clause unnecessary, then that interpretation is not valid.

(Also deserving of note is that the Common Law was entirely separate from the Lex Mercatoria – or the Law of Commerce. In general terms the Common Law was the law of the land; while the Law of Commerce was the law of water – or of the sea.)

Now to Corsskey and Hamilton. Both interpretations violate the Textual Surplus Rule: if a certain interpretation of any one clause renders any other clause unnecessary, then that interpretation is not valid.

The commerce clause specifically grants (which means it limits) congressional authority to regulate commerce with foreign nations, among the several states, and with the Indian tribes

If Commerce means “all gainful activity throughout the several states then what of the extra words and clauses: foreign nations, indian tribes, bankruptcy, patents and intellectual property, land regulation, coinage clause etcetera.

Surely if the framers meant and ratifiers understood commerce to mean all gainful activity why would they include these other clauses that directly relate to gainful activity?
Such a claim would render them ignorant and shortsighted indeed. The commerce clause alone would have covered these clauses. They would be unnecessary.

Yet they are present. And according to the rule, if any interpretation of the commerce clause renders these other clauses and words as surplus, or essentially negates or nullifies them, then that interpretation cannot be textually sound.

And any one caught consenting to such a doctrine might verifiably be accused of “ruling by whim” — or at minimum desiring to.

THE COMMERCE CLAUSE LIMITED POWER OF FEDERAL GOVERNMENT

To be totally accurate, the commerce clause — intially — increased the power of the federal government. The congress under the Articles of Confederation had no such power. It was the very idea of increases of power the anti-federalists fought against the Constitution and ratifcation for.

However, the grant of commercial regulation was not a plenary (or full) grant of unchecked power.

According to the Lex Mercatoria in the eithteenth-century commerce meant:

1. Buying and selling of products made by others
2. Associated finance and financial instruments
3. Navigation and other carriage
4. Intercourse across jurisdictional lines

(We have to remember that one of the most substantial reasons for calling the 1787 convention was to fix the glaring problems with inter-state commerce.)

From this rule of construction alone it is clear the clause did not give power to congress to regulate the entire national economy as Crosskey claimed, and many others claim today.

As we have seen, according to many today there may not be any powers the Constitution has not delegated to the federal government. Common legal recourse of our modern regulatory government is the ongoing interpretation by courts, precedent, and accommodating textual analysis.

In light of this, there are three questions that should dominate any rational and liberty minded individual.

Do the powers of the constitution, especially in view of amendments nine and ten, comprise all the powers the feds say it does?

What are those powers reserved to the states?

Is there a list or basic enumeration we can use as a guide?

Fortunately, as the federalists fought for ratifcation they left a detailed and remarkably consistent record of enumerated powers that would be reserved to the states respectively.

This was done to convince the anti-fed’s of constitutional limits of federal power and as a method to influence them to ratify.

There were many who contributed to this debate. Among whom were Alexander Hamilton, James Madison, James Wilson, Edmund Pendelton, James Iredell, John Marshall, Tenche Coxe, and several other anonymous authors.

Here is a comprehensive list of powers that would be reserved to the States. (This was done through writing and speaking.)

• Training militia and appointment of officers
• Local Government
• Regulation of Real Property
• Regulation of Personal Property outside of Commerce
• Domestic and Family Affairs
• Criminal Law
• Civil Justice
• Religion and Education
• Social Services
• Control of Agriculture
• Control of other Business Enterprise
• Supreme arbiter and interpreter (along with the people) of the Constitution
• Power to invalidate unconstitutional actions of any branch of the federal government

The real value of this enumeration is that it assists us to understand the dividing line between State and Federal power. It also helps us see clearly how much, and what kind, of “aid” the federal government should be doling out to states — or the states should be accepting.

It must be noted that this list does not necessarily reveal intent but it does help communicate the original understanding at the time.

To avoid unacceptable risks of centralization the founding generation decided to expressly reserve exclusive jurisdictional control over certain national concerns to the respective states.

The commerce clause, among others, secured this by limiting the regulatory power of Congress over commerce to foreign nations, among or between the several states, and with the indian tribes.

Therfore, there is no basis for the claim that commerce meant “all gainful activity throughout the nation.”

The commerce clause was designed to give Congress jurisdiction over the Law Merchant – Lex Mercatoria – as it pertained to inter-jurisdictional activities between the states.

This meaning was so clear it produced virtually no objection during the ratification debates – the records are almost silent on discussion over this clause.

In UNITED STATES, PETITIONER v. ALFONSO LOPEZ, Jr. Justice Thomas issued the most sound defense of the limiting nature of the commerce clause.

“The Constitution not only uses the word “commerce” in a narrower sense than our case law might suggest, it also does not support the proposition that Congress has authority over all activities that “substantially affect” interstate commerce. The Commerce Clause does not state that Congress may “regulate matters that substantially affect commerce with foreign Nations, and among the several States, and with the Indian Tribes.” In contrast, the Constitution itself temporarily prohibited amendments that would “affect” Congress’ lack of authority to prohibit or restrict the slave trade or to enact unproportioned direct taxation. U. S. Const., Art. V. Clearly, the Framers could have drafted a Constitution that contained a “substantially affects interstate commerce” clause had that been their objective…”

“Indeed, if Congress could regulate matters that substantially affect interstate commerce, there would have been no need to specify that Congress can regulate international trade and commerce with the Indians. As the Framers surely understood, these other branches of trade substantially affect interstate commerce.”

Now whenever any politician or power pundit claims carte blanche authority for action under the commerce clause, or just laughs and says “are you serious” when asked where authority for action comes from, you will have ample ammo to amend their aberrant claims.

For a more indepth reading of the original understanding of the commerce clause see:

1. Robert Natelson, The Original Constitution: What It Actually Said And Meant

2. U.S. v Lopez 1995

“EQUALITY” 

AND 

THE DECLARATION OF INDEPENDENCE

If there is an abused and misused phrase in American Independence literature, none is more suitable than “All men are created equal.”

Stripped of original context it has come to be the philosophical authority for virtually every social doctrine, special interest persuasion, international proceeding, and progressive ideology.

As a side note, this phrase and the paragraph it belongs to have almost entirely overshadowed the actual Declaration of Independence.

Most people memorize, or are familiar with, the first two paragraphs. Yet these are only the philosophical reasoning and authority for the last paragraph – which by force of the circumstances and legal implications is the most important paragraph in defense of State Sovereignty.

It is the last paragraph that declares Independence: “That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all alegience to the British Crown…”

Another critical feature is Jefferson’s direct transition from Colonies to Free and Independent States. But, the last paragraph and the subject of Independent States is a theme for another article.

Our immediate concern regards the word equality and the various sytles in which it was used during the founding era.

There were many usages of the terms equal and equality present in governmental dilaogue of Independent America. In general themes, there were five common usages.

Two came from Locke, a third was best expressed by John Taylor of Caroline, another related directly to “freemen,” and a fifth was propagated by the Scottish Common Sense school of Philosophy under the pen of Francis Hutcheson. (Whom Jefferson was heavily influenced by)

THE FIRST LOCKEAN PRINCIPLE OF EQUALITY held that no man has a natural or God-given right to rule over another person.

There were some who used this argument as an invalidation of the institution of slavery. However in the main, it was used only against the regal doctrine of divine right of kings.

In other words, most who embraced this idea extended its implications only to those who ruled over them – to kings – but not to those whom they ruled over. (Again, they were human and liable to err in the direction of their own self-interest)

Those who held positions of power and responsibility did so by graces of the people. They stood in their position on grounds of good behaviour – or good performance and support of those they stood for – if that trust was violated they were promptly removed.

It was that relation, between kings and subjects, that almost all Americans agreed all men were created equal. Birth or position does not automatically separate a man from his fellows and grant him special dispensation to exercise authority over them.

THE SECOND LOCKEAN PRINCIPLE OF EQUALITY derives from the premise that human beings are born with a blank slate – a tabula rasa. 

Aristotle was the first to propose this idea. He described (in oppostition to Plato and Socrates who believed the mind of man existed independently before this life and was sent down and enjoined with the physical flesh) the mind of man as an unwritten tablet and only gains knowledge by experience and sense perception.

Thomas Aquinas, Francis Bacon, David Hume, John Locke and others whose writings heavily influenced the founders embraced this idea.

Essentially adult human beings are a product of social and familial tradition, time, circumstance, and individual experience. A natural philosophical development of this belief is education is critically important to the formation and operation of a good society.

Since all men are born equally ignorant, they must be taught how to be a good citizen and what proper conduct is within a free republic. Jefferson latched on to this idea with his whole heart. Virtually to his death he preached on the theme of education as the safeguard of lasting liberty.

This theme has modern undertones in the writings of Freud, Dewey, and other social engineers, but with a different intent than that of the founders.

THE THIRD IDEA OF EQUALITY was directly concerned with morality.  The average 18th century person was steeped in the belief of an afterlife and final judgment.

The existence of diety was a social given as was the belief that all men – black and white – were directly accountable to Him; and thus were equally bound by moral duties with obligation and authorization to perform them.

John Taylor of Caroline was arguably the most outspoken advocate of this opinion. Though writing after the revoutionary era, he claimed his opinions accurately represented the true approach of the great American revolutionaries.

He felt most historical forms of government motivated man’s evil tendencies and thus corrupted his moral sense. But if the government were properly framed and it’s policies were true to the promotion of man’s honorable tendencies then men would be most inclined to perform his moral duty.

Such duties included hard work, self accountability, industry, education, along with the defense of freedom of religion, speech, press, inquiry, adequate division of power between sovereigns, elections by freemen, and representative democractic forms.

The equality thus shared by all men was no trivial abstraction but one they were obliged to defend here for they would be accountable for it before the King of kings.

THE FOURTH VIEW OF EQUALITY had direct reference to men – specifically “freemen.”

The word men in the phrase “all men are created equal” has, in our day, been extrpolated to include all human beings regardless of race, age, or gender. Whether this is acceptable or not in the legal american tradition is not relevent here. We are solely concernced with its substantive meaning then.

This idea of equality is the most common reference used today: that of equality under the law. What is missed in this argument is that during the founding era women, slaves, and children had no legal standing politically or in the courts.

Traditionally, Freemen were those who were not tied – or bound – to the land as in medieval feudalism. In America it excluded indentured servants, domestic servants, and of course slaves.

This class of people made up “the citizens” because they held legal status. In the convention of 1787 there was intense debate surrounding the question of who should receive the privilege of voting.

There were many who advocated property requirements in order to vote on grounds that if the propertiless could vote they – being in the majority – would use that privilege to vote themselves benefits out of the purses of the propertied class.

This idea of limiting the rights of citizenship to “freemen” was also entirely compatible with – and to some indespensible to – commonly held principles of republican theory and government.

Upon reexamination of the specific Declaration phrases in light of this concept of equality we arrive at an entirely different view of “all men are created equal” than is commonly preached.

“We hold these Truths to be self-evident, that all men (freemen) are created equal, that they are endowed by their created with certain unalienable rights (the rights of freemen are unalienable, those of servants or slaves obviously were not) that among these are life, liberty, and the pursuit of happiness.”

To be sure the rights of liberty alone, not to mention life and the pursuit of happiness, were not granted to “all men” – but to all “freemen.”

As an aristocratical elitist mentality this approach can and has been the subject of censure. Yet there were very few indeed who viewed it that way. For most it was a matter of course, practicality, and good government policy.

Extending the legal franchise to all people, period, has historically been a leading cause of social decay and disintegration. The framers, versed as they were in the unpromising history of republics and nations were conscientious of framing a system of government that would go as far as possible in overcoming the ills and weaknesses of those forms of government.

In the view and understanding of a reasonably well informed individual of the revolutionary era, the phrase “all men are created equal” had reference to the common understanding of the concept of “freemen.” And equality under the law applied only to those who enjoyed legal status.

THE FIFTH CONCEPTION OF EQUALITY came from the Scottish Common Sense school of Philosophy the specific doctrine of which was that all human beings are born with a moral sense. Born with an innate knowledge – as opposed to a tabula rasa – of good and evil, right and wrong, and a principled nature – all men, wrote Francis Hutcheson, “are originally equal.”

As such they have equal ability to determine their representatives and judging whether the behavior of their choice is good or evil, right or wrong. “Nature makes none masters, none slaves” wrote Hutcheson.

Quite apart from the fourth concept of equality, the logical step from this premise is a position of extreme democracy. All will be involved in government: rich and poor, bond and free, male and female.

Jefferson, among others, grasped this theory and preached it till his death. Ironically for Jefferson, this position alone completely negated the institution of slavery as morally acceptable on the premise of the “original equality.”

Such are the generally held ideas surrounding the concept of equality in the founding era. I make no allusions to which is right or wrong. The point is to clarify the fact that there were many different approaches and the same is true with virtually every other philosophy surrounding the eventful time.

Therefore what? With such different and diverging views what constructive conclusion can be drawn for us in our day?

I offer a few observations.

1. Revolutionary America was more than just a war of swords but – more intense in my opinion – a war of words, of ideas, of philosophy, and of application. History can be summed up as man’s reaction to the world around him. It is the sum of all the decisions made by human beings as a response to his environment, senses, perceptions, and beliefs. The ideas that win the day rarely do so because they are morally right and divinely inspired. Rather, they win because they are clearly understood and fearlessly fought for. The opinions of men are largely shaped by those who tirelessly and heroically prosecute their cause – whether good or evil. Unfortunately the evil people have been more tireless and thus more successful at getting their philosophy adopted by governments and the people. If we want any certain opinion or idea to be accepted and adopted we must fight for it with all our heart, mind, and strength; using every means possible and available to propogate the philosophy.
2. It is never sufficient to blindly assert the past when the present is frought with ambiguity and deception. In order to apply the past to the present it must be clearly understood – to the extent possible. Then one must decide where he stands. A blind man has very little reference points to ascertain his position. He is hardly able to say where he is in relation to any given object. We must strive to understand as clear as possible things as they were that we might be able to confidently, fearlessly, and humbly engage things as they are.
3. The idea that the founders had a monopoly on all principles of good government and understood and agreed on the best possible philosophy of social arrangement is a crippling patriot notion and is simply false. The founding era was a titanic struggle amongst a multiplicity of factions, interests, and belief systems. Many of the framers themselves claimed their ideas were insufficient and they relied on future generations to improve on the science of good government and social structure and fix what they had missed.

We must do with them as Newton did, stand on the shoulders of those giants and improve on what they have done.