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The Original Meaning of the Commerce Clause

The Original Meaning of the Commerce Clause

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A scholarly paper on The Original Meaning of the Commerce Clause. This paper can be downloaded free of charge from: http://scholarship.law.georgetown.edu/facpub/509
A scholarly paper on The Original Meaning of the Commerce Clause. This paper can be downloaded free of charge from: http://scholarship.law.georgetown.edu/facpub/509

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GEORGETOWN LAW 
2001
The Original Meaning of the Commerce Clause
Randy E. Barnett
Georgetown University Law Center 
 , rb325@law.georgetown.edu
This paper can be downloaded free of charge from:http://scholarship.law.georgetown.edu/facpub/509
This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author.
68 U. Chi. L. Rev. 101-147 (2001)
 
The
Original
Meaning
of
the
CommerceClause
Randy
E.
Barnett-I
The
U&
Supreme
Court,
in
recent
cases;
has
attemptedto definelimitson
fie
Congress's
power
to regulate commerce
anong
the
several
states
While
JusticeThomas
has maintained
that
the
original
meaning
of
"commerce"was
limited
to
the "trade
and
exdange"
of
goods
and
rans.portation
or
thispurpose, some have
arguedhat
he
is
mistaken
and
that
"commerce"
originally
included
any "gainful
activity."
Havingexamined
ever),
appearance
of
the
word
-conmnerce"in
the
records
of
the
Constitutional
Convention,the
ratification
debawem
and
the
Federalist
Paper-
Pro-
fessor Barnett
inds
no
surviving
example
of
this
term
beingusedinthis
broader
ense.
In
every
appearance
where thecontext suggests
a
specific
usage,
the
narrol
meaning is
alvays
employed.Moreover, riginalist
evidence
of
the
meaning
of
"among
he
several States"
and
"To
regulate"alsosupports
a
narrow
reading
of
the Commerce
Clause-
"Among
the
several
States"
meant
between
persons
of
one state
and
another,
and
"To
regulate"
generally
meant
"to
make
regular"-tat
L to
specify
how
an
activity
may
be
transacted-when
applied
to
domestic
commerce,
but
when
applied
to
foreign
tradealsoincluded
the
power
to
make
"prohibitory
regulation&"
In
sun,
according
o
the
original
meaning
of
the Commerce
Clause,
Congress
has
power
to specify
rules
togovern
the
manner
by
which
people
may
exchange
or
trade
goods
front one state
to
another,
o remove
ob-
structions
to
domestic
trade
erected
by
state; and
to
both
regulate
and
restrict he
flo,
of
goods
to
and rom
other nations
(and
the
Indian
tribes)
for
the
purpose
of
promoting
tie
domestic
econ-
omy
and
oreign
trade.
In
United
States
v
Lopez,
for
the
firsttime
in
sixty
years,
the
Su-
preme
Court
of the
United
States held
a
statute
tobe unconstitutionalbecause
it
exceeded
the
powers
of
Congress
under
the
Commerce
Clause.
In
his
concurring
opinion,
Justice
Thomas
offered
a
critique
of
contemporaryCommerce
Clause
doctrine-based
on
the
original
meaning of
the
clause-that
went
well
beyond
the
majorityopinion.According to
JusticeThomas,
"[a]t
the
time
the
original
Constitution
was
ratified,
'commerce'consisted
of
selling,
buying,and
bartering,
as
well
as
transporting for
these
purposes."'
He
also cited
the
etymology
of
the
word, which
literally means
"with
merchandise."'
He
then
noted
I
Austin
B.
Fletcher Professor, Boston University
School
of
Law
(<rbamettGbu.edu>).
I
wish
to thank
Richard Epstein,OlivierMoreteau.
David
Snyder,
Nancy
Staudt,
my colleagues
Jack Beermann, Oona Hathaway,Steve
Marks,Mike
Meurer,
andespeciallySusan Koniak
for
their
extraordinarily
helpful
commentsand
suggestions.
1
514
US
549
(1995).
2
Id
at
552.
3
Id
at
585.
Justice
Thomas
cited: Samuel
Johnson,
1
Dictionary
of
the
EnglishLanguage
361
(W.
trahan 4th
ed
1773)
(defining
commerce as
"Intercour[s]e; exchange
of
one thing
for
another,
interchange
of
any
thing;
trade; traffick"); Nathan Bailey
An
Universal
EtymologicalEnglish
Dictionary
Neill
26th ed
1789)
("trade or traffic");T.
Sheridan,
A Complete
Dictionary
of
the
English Language
585-86
(W. Young,
Mills
and
Son
6thed
1796)
("Exchange
of
one
thing
for another,trade,
traffick").
4
Justice
Thomasrelied onthe
OxfordEnglish
Dictionary
for
the
etymology
of
the
word"commerce."
514
US
at
585-86.
See
3
OxfordEnglishDictionary
552
(2d
ed
1989)
(com--with";
merci-"merchandise").
HeinOnline -- 68 U. Chi. L. Rev. 101 2001
 
The
University
of
Chicago Law
Review
that
"when
Federalists
and
Anti-Federalists
discussed
the
CommerceClause
during
the
ratification
period,
they often
used
trade
(inits
sell-
ing/bartering
sense) and commerceinterchangeably."' The
term
"commerce,"according
to
JusticeThomas,
"was
used
in
contradistinc-tionto productive
activities
such
as
manufacturing
and
agriculture."
6
In
his
opinion,
Justice Thomas
endorsed
the
view
ofthe meaningof"commerce"
that
the
Supreme Courtof
the
Progressive
Era
used
to
strike
down various
regulationsof
economic
activity.
7
In
cases such
as
United States
v
E.C.
Knight
Co,
8
theCourt
distinguished"commerce"
from manufacturingoragriculture,
and
held
that
the
regulation of
ei-
ther
manufacturingoragriculture exceeded
the
powers
of
Congress
under
the
clause.
9
Referring
to
"what
legal
historians
with
proper
derision
call 'lawoffice
history,"'
Judge
Richard
Posner
cited
Justice
Thomas's
concur-
rence
as
an
exampleof
"highly
debatable
historical
excursus
by
originalist
judges."'°
Justice
Thomas'sconception ofthe
original
mean-
ing
of
the
Commerce
Clause
has
also
been
challenged
in
a
lengthy
ar-
ticle by
Professors
Grant
Nelson and
Robert
Pushaw,
Jr."
They exam-ine
"the
original
meaning,
intent,
and
understanding"'
2
of
the
Com-
merce
Clause
and reach
the
conclusion
that
commerce originallyre-
ferredto
any"gainful
activity."'
3
As
such
it
would
embrace
all
manu-facturing and agriculture
in
addition
to
trade
andexchange.
5
514US
at
586.
Thomas
cited:
Federalist
4 (Jay),
in
Jacob
E.
Cooke,ed,
The
FederalistPa-
pers
22
(Wesleyan
1961)
(asserting
that
countries
will
cultivate
our
friendship
when
our
"trade"
is
prudently
regulated
by
thefederal government);Federalist
7
(Hamilton),
in
Cooke, ed,
The
Federalist
Papers
at
39-40
(discussing
"competitions
of
commerce"between statesresulting
from
state
"regulations of
trade");
Federalist
40
(Madison),
in
Cooke,ed,
The
Federalist
Papers
at
262
(asserting
that
it
was
an "acknowledgedobject of the
Convention...
that theregulation of tradeshould
be
submittedto the
general
government");Richard
Henry
Lee,
Letters
of
a
Federal
Farmer
No.
5,
in
Paul Leicester Ford, ed,
Pamphlets
ontheConstitution
of
the
United
States 1787-
88
318,319
(1888);
Melancton
Smith,
An Address
to
the
People
of
the
State
of
New-York,
in
Ford,ed,
Pamphlets
on the
Constitution
88,107.
6
514
US
at
586-87. Thomas
citedin
supportof
this
Alexander Hamilton
in
The
Federalist
Papers
and
two
instances
of
suchusage in
the ratification conventions.
7
Id
at
599
("If
anything, the
'wrong
turn'
was
the
Court's
dramatic
departure
inthe
1930's
from
a
century and
a
half of
precedent.").
8
156
US
1
(1895).
9
Id
at
12
("Commerce
succeeds
to manufacture,and
is
not
a
part
of
it.").
10
Richard
A.
Posner,
Past-Dependency,
Pragmatism,
and
Critique
of
History
in
Adjudica-
tion
and
LegalScholarship,
67
U
Chi
L Rev573,595
&
n 56 (2000).
11
Grant
S.
Nelson and
Robert J.
Pushaw,
Jr.,
Rethinking
the
Commerce
Clause:
Applying
First Principles
o
Uphold
Federal
Commercial
Regulations
but
Preserve
State
Control
over
SocialIssues,
85
Iowa
L
Rev
1
(1999).
12
Id
at
13.
13
Id
at
13-20.
[68:101
HeinOnline -- 68 U. Chi. L. Rev. 102 2001

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