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Constitutional education, history, commentary, reform, compliance, and interpretation.

2012/02/12

What "commerce" meant to the Framers

Much of what the U.S. government does is based on the broad interpretation by judges of the term "commerce" in Article I Section 8 of the U.S. Constitution, but what did that term mean to the Framers, and how was it understood by people in 1787?

I set out to discover the evidence from historical records of what it meant. I had read most of what the Framers wrote, and much of what they read, and could find few mentions of the word, mostly after the Constitution was drafted and its ratification was being debated. One of the things I did was to search through copies in the archives of the American Antiquarian Society of the newspapers published before 1788, most of which were price reports on trade goods, but among all those editions, I found only four instances of the word "commerce", all used to refer to the trade goods being reported. Evidently the word "commerce" was not commonly used among ordinary people in the American colonies or newly independent states.

When I searched the works most often cited by the Framers as authoritative, I found only one instance of the word "commerce" defined. That was in The Law of Nations, , Book I § 92, by Swiss writer Emmerich de Vattel, originally published in 1758, in French. "Commerce" was a French word. He defined it thus:
... commerce consists in mutually buying and selling all sorts of commodities.
Although the Framers did not cite that particular passage, their frequent cites of other passages supports the position that had they been asked to provide authority for the term as they meant it, it would have been to Vattel.

However, I was not satisfied with that one brief passage. Fortunately, I found in a used bookstore a facsimile edition of the very first edition, from 1771, of the Encyclopedia Britannica, in three volumes. It was published with a magnifier lens to enable the reader to see its very fine print. It is a treasure trove of articles on subjects that reveal better than most writings what many of the terms meant, at least to the Scots authors of the set. It was clearly a product of the Scottish Enlightenment that had a large influence on the Founders of the U.S. One of its articles is on "Commerce", comprising more than 11 pages. I have scanned, OCRed, rendered it into HTML, and posted it on our website here for the convenience of readers. I plan to put up more of it here as time and donations permit.

The opening paragraph of the article reads:
COMMERCE is an operation, by which the wealth, or work, either of individuals, or of societies, may be exchanged, by a set of men called merchants, for an equivalent, proper for supplying every want, without any interruption to industry, or any check upon consumption.
The rest of the article elaborates on this, explaining further the meaning of the term, and from that we can extract what the term included:
  1. Transfer of title to and possession of tangible commodities in exchange for a valuable consideration, here called an "equivalent", from a seller to a buyer.
  2. There must be at least one merchant between the ultimate producer of the commodity, and the ultimate consumer of it.
What it did not include were:
  1. Direct sales from producers to consumers.
  2. Services, credit, leasing, and financing (and today, energy).
  3. Transport that did not involve a sale.
  4. Speech, press, or other communications or information.
  5. Extraction of a resource.
  6. Manufacturing.
  7. Possession before or after the sale.
  8. Use and enjoyment.
  9. Disposition, including further conveyance not itself for a valuable consideration and through a merchant.
Now this meaning is very different from the meaning the word has for people today, who tend to use the word for economic activity of all kinds. But understanding what it does not include is important when the term is used in a delegation of a power, because by the common law rule of construction, presumed incorporated into the Constitution, "powers" were to be construed as narrowly as the words permit. These rules can be found in the legal maxims:

Potestas stricte interpretatur. A power is strictly interpreted. 
In dubiis, non præsumitur pro potentia. In cases of doubt, the presumption is not in favor of a power.
Conversely, since rights (or more precisely, immunities) are the complement of delegated powers, narrow construction of powers means broad construction of immunities. If there is any doubt, the presumption must always be against a power and in favor of a right against the exercise of the power.

The article does much more than just define the boundaries on what is and is not "commerce". It is a kind of mini-textbook on economics as it was understood at the time, with discussion of supply, demand, pricing, and money.

The article uses many terms in ways that allow the etymologist to extract their meaning. An example of this is the word "state", which from context refers to a society with a territory, not to a government. This is also the meaning it had in the U.S. Constitution.


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