By: Robert G. Natelson
This study examines the legal meaning of the word “commerce” in
the Founding Generation in order to settle a long-standing
controversy about the breadth of the Constitution’s Commerce
Clause.
Traditionally, “commerce” in the Commerce Clause has been
understood to encompass only buying, selling and associated
activities. Technically speaking, it is the Necessary and
Proper Clause, not the Commerce Clause that the Supreme Court has
employed to justify the expansion of the Commerce Power in modern
times. However, some scholars, argue that “commerce” was
intended to have a much wider meaning—to include all economic
transactions or even all economic and social transactions.
This view has become more important with recent scholarly findings
that the Court’s reliance on the Necessary and Proper Clause is
incorrect, because that Clause was designed to be only a rule of
construction, not an independent source of power.
Prior studies of the Founding-Era meaning of “commerce” have
focused on its meaning among lay persons. However, the
Constitution was universally understood to be a legal document, not
a lay document. Accordingly, this study examines the meaning
of “commerce” in legal discourse. For example, using an
English database available at Oxford University, the author
surveyed every appearance of “commerce” in English Reports, Full
Reprint before 1800. Based on this and other evidence, he
concludes that among lawyers (1) the term “commerce” nearly always
meant “mercantile activities,” and (2) that while it occasionally
referred to sexual or social activities, it rarely, if ever,
referred to the entire economy.