ࡱ> ` 5bjbjss ;8.J42+n/1111111$2he5^1b1b1b1141b1b1b1b11b1b11b1b1b1~ P=ACb1b11102b15b15b15b1$b1b1b1b111b1b1b1b12b1b1b1b1$tJ  University of Chicago Law Review Winter 2001 Article *101 THE ORIGINAL MEANING OF THE COMMERCE CLAUSE Randy E. Barnett [FNd1] Copyright 2001 University of Chicago; Randy E. Barnett II. The Original Meaning of "Commerce" The Commerce Clause raises three questions that must be answered by interpretation, construction, or both: What is the meaning of "Commerce"? What is the meaning of "among the several States"? And what is the meaning of "To regulate"? The source of the scholarly debate lies in the fact that, unlike some other provisions of the Constitution, the evidence of "original intent, meaning, and understanding" [FN48] is in conflict. This is because there was a clash of objectives among different supporters of the Constitution, not to mention a clash between supporters and opponents. And unlike other passages of the Constitution, each of the terms of the Commerce Power is said to have had, at *112 the time of the founding, both an expansive and more limited meaning in common discourse (though not, as we shall see, in the context of the drafting and ratifying of the Constitution). "Commerce" might be limited to trade or exchange of goods, which would exclude, for example, agriculture, manufacturing, and other methods of production, or it might expansively be interpreted to refer to any gainful activity. "To regulate" might be limited to "make regular," which would subject a particular type of commerce to a rule and would exclude, for example, any prohibition on trade as an end in itself, or it might expansively be interpreted to mean "to govern," which would include prohibitions as well as pure regulations. "(A)mong the several States" might be limited to commerce that takes place between the states (or between people of different states), as opposed to commerce that occurs between persons of the same state. Or "among the states" might expansively be interpreted to refer to commerce "among the people of the States," whether such commerce occurs between people in the same state or in different states. Though it is often difficult to be sure of the meaning intended by a speaker from the context of a particular statement, there are good textual and contextual reasons to accept the narrower definition of each of these terms as their original meaning at the time of the founding. Because the meaning of the term "commerce" has been the most contentious, I will spend more time evaluating the evidence of its original meaning than that of the others. I was surprised to find, given the degree of scholarly criticism of the narrow meaning, that the use of the term "commerce" in the drafting and ratification process was remarkably uniform. Indeed, I have found not a single example from the reports of these proceedings that unambiguously used the broad meaning of "commerce" and many instances where the context makes clear that the speaker intended a narrow meaning. A. Originalist Sources 1. The text. The first place to look for the original meaning of the text is the text itself, both the immediate text at issue and any other text in the Constitution that may shed light on the meaning of the relevant portion. In sum, does the Constitution serve as its own dictionary on the meaning of a particular word? When considering the meaning of the term "commerce," it is tempting to argue that "commerce" must mean trade, and not manufacturing or agriculture, because it would make no sense to refer to a congressional power "to regulate manufacturing with foreign nations" or "to regulate agriculture with Indian tribes." *113 This temptation should be resisted, however. For, if we plug the broadest meaning of "commerce"that is, "gainful activity"into the sentence so it reads Congress shall have power "to regulate gainful activity with foreign nations," the sentence makes perfect sense. While it is true that the clause would be referring only to that subset of gainful activity that can be conducted "with foreign nations" and "with the Indian tribes" and that this would exclude manufacturing and agriculture, this would not be due to any narrow meaning of "commerce," but because of the narrowing meaning of "with foreign nations" and "with Indian tribes." In other words, the word "commerce" could still be used in its broadest sense in a manner that does justice to the sentence as a whole. Therefore, while this sort of textual analysis may well reveal what the term "among the several States" means, [FN49] it does not tell us in which sense, narrow or broad, the word "commerce" is being used in the Commerce Clause, and we must look elsewhere for guidance. A bit more assistance is provided from the way "commerce" is used in Article I, Section 9, which reads: "No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another. . . ." [FN50] Here, as Richard Epstein has written, "(t)he term 'commerce' is used in opposition to the term 'revenue,' and seems clearly to refer to shipping and its incidental activities; this much seems evident from the use of the term 'port."' [FN51] Moreover, unlike the Commerce Clause, we cannot here comfortably substitute "gainful activity" for the term "commerce." "No Preference shall be given by any Regulation of gainful activity to the Ports of one State over those of another" is too awkward to be an accurate translation. But though in Article I, Section 9, the term "commerce" is, all by itself, [FN52] pretty clearly being used in a much narrower sense than "any gainful activity," we cannot be sure from this usage exactly what this sense is. For that we need to appeal to extrinsic evidence of original meaning that lies outside the four corners of the Constitution. 2. Contemporary dictionaries. Commerce is defined in the 1785 edition of Samuel Johnson's Dictionary of the English Language as "1. Intercourse; exchange of one thing for another; interchange of any thing; trade; traffick." [FN53] In *114 contrast, "manufacture" is defined as "1. The practice of making any piece of workmanship. 2. Any thing made by art." [FN54] "Agriculture" is defined as "(t)he art of cultivating the ground; tillage; husbandry, as distinct from pasturage." [FN55] If Johnson is accurate, commerce referred predominantly to exchange or trade as distinct from the agricultural or manufacturing production of those things that are subsequently traded. As Justice Thomas noted in his concurrence, [FN56] Johnson's definition of "commerce" is borne out by other dictionaries of the time. It is also the usage most closely associated with the drafting and adoption of the Constitution. Nelson and Pushaw acknowledge that "trade and exchange" is the core meaning of "commerce." [FN57] The question is whether they are right to claim that "(a)bundant evidence demonstrates, however, that 'commerce' had other broader meanings, which a significant number of the Constitution's Framers and Ratifiers intended to incorporate." [FN58] While their evidence showed that a number of framers and ratifiers may have desired a government powerful enough to control all aspects of the national economy, the issue is whether the term "commerce" that was chosen to describe the powers of Congress conveyed that expansive meaning to those to whom it was addressed and whether the public statements of those who supported the Constitution and favored broad national powers reflected such a meaning. If "commerce" had been used in its broad sense, we would expect this usage to appear somewhere in the records of the Constitution's drafting and ratification. But no such example exists. 3. Constitutional Convention. In Madison's notes for the Constitutional Convention, the term "commerce" appears thirtyfour times in the speeches of the delegates. [FN59] Eight of these are unambiguous references to commerce with foreign nations which can only consist of trade. In every other instance, the terms "trade" or "exchange" could be substituted for the term "commerce" with the apparent meaning of the statement preserved. *115 In no instance is the term "commerce" clearly used to refer to "any gainful activity" or anything broader than trade. One congressional power proposed by Madison, but not ultimately adopted, suggests that the delegates shared the limited meaning of "commerce" described in Johnson's dictionary. Madison proposed to grant Congress the power "(t)o establish public institutions, rewards, and immunities for the promotion of agriculture, commerce, trades and manufactures," [FN60] strongly suggesting that the members understood the term "commerce" to mean trade or exchange, distinct from the productive processes that made the things to be traded. 4. The Federalist Papers. Nor was this a secret usage confined to the Convention. In several of his contributions to The Federalist Papers, ardent nationalist Alexander Hamilton repeatedly made clear the commonplace distinction between commerce or trade and production. In Federalist 11, he also explained the purpose of the Commerce Clause, a purpose entirely consistent with the prevailing "core" meaning of the term "commerce": An unrestrained intercourse between the States themselves will advance the trade of each by an interchange of their respective productions, not only for the supply of reciprocal wants at home, but for exportation to foreign markets. The veins of commerce in every part will be replenished and will acquire additional motion and vigor from a free circulation of the commodities of every part. Commercial enterprise will have much greater scope from the diversity in the productions of different States. [FN61] In Federalist 12, he referred to the "rivalship," now silenced, "between agriculture and commerce," [FN62] while in Federalist 17, he distinguished between the power to regulate such national matters as commerce and "the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation." [FN63] In Federalist 21, Hamilton maintained that causes of the wealth of nations were of "an infinite variety," including "(s)ituation, soil, climate, the nature of the productions, the nature *116 of the government, the genius of the citizens, the degree of information they possess, the state of commerce, of arts, of industry." [FN64] In Federalist 35, he asked, "Will not the merchant understand and be disposed to cultivate, as far as may be proper, the interests of the mechanic and manufacturing arts to which his commerce is so nearly allied?" [FN65] In none of the sixtythree appearances of the term "commerce" in The Federalist Papers is it ever used to unambiguously refer to any activity beyond trade or exchange. At the time of the framing, then, for Hamilton, a proponent of broad national powers, the term "commerce" in the Constitution referred to trade or exchange, not to the production of items to be traded, and certainly not to all gainful activity. Even later, with the contentiousness of the Constitution's adoption behind him, Hamilton's usage did not change. As Secretary of the Treasury, Hamilton's official opinion to President Washington advocating a broad congressional power to incorporate a national bank repeatedly referred to Congress's power under the Commerce Clause as the power to regulate the "trade between the States." [FN66] 5. Ratification conventions. Having examined every use of the term "commerce" that appears in the reports of the state ratification conventions, I found that the term was uniformly used to refer to trade or exchange, rather than all gainful activity. Because people used this word to convey its accustomed meaning, they did not often define it or give contextual clues as to what they believed the term meant. Yet some of these public speeches make clear that "commerce" was used as a synonym for trade or exchangeand did not include agriculture, manufacturing, or other businessand every speech is consistent with such a meaning (though I will discuss two statements that can be misinterpreted as connoting a broader meaning of "commerce"). I shall present this evidence state by state. In the records of the Massachusetts convention, the word "commerce" is used nineteen timesevery use consistent with it meaning trade, mostly foreign trade; and no use clearly indicating a broader meaning. The most explicit distinction was made by Thomas Dawes, a prominent revolutionary and legislator, who began his discussion on *117 the importance of the national taxation powers. "We have suffered," said he, "for want of such authority in the federal head. This will be evident if we take a short view of our agriculture, commerce, and manufactures." [FN67] He then expounded at some length, giving separate attention to each of these activities and the beneficial effect the Constitution would have on them. [FN68] Under the heading of "commerce," he referred to "our own domestic traffic that passes from state to state." [FN69] Only two other speakers in the Massachusetts convention implicitly distinguished between "commerce" and other economic activities. Charles Turner referred to "the deplorable state of our navigation and commerce, and various branches of business thereon dependent." [FN70] And making much the same point, James Bowdoin of Boston argued that the existing confederation lacked the power to retaliate against foreign nations who placed restrictions on American exports: Hence a decrease of our commerce and navigation, and the duties and revenue arising from them. Hence an insufficient demand for the produce of our lands, and the consequent discouragement of agriculture. Hence the inability to pay debts, and particularly taxes, which by that decrease are enhanced. And hence, as the necessary result of all these, the emigration of our inhabitants. [FN71] While each of these further consequences flowed from a decrease of "our commerce and navigation," they were not the same thing as commerce. In the few fragments that survive of the Maryland, Connecticut, and New Hampshire ratification debates, the term "commerce" is mentioned only once. In the opening address to the Connecticut convention, Oliver Elsworth referred to the Swiss who "(t)ill lately," he said, "had neither commerce nor manufactures. They were merely a set of herdsmen." [FN72] By contrast, in the more extensive records of the New York convention, the term appears thirty times. Governor Clinton referred to "(t)he situation of (each state's) commerce, its agriculture, and the system of its resources." [FN73] Another delegate questioned the need for the new central government by noting the rapid economic *118 progress: "How (the country's) agriculture, commerce, and manufactures have been extended and improved!" [FN74] The New York delegate who repeatedly made the clearest distinction between commerce and other economic activity was Alexander Hamilton. As part of a lengthy speech, he observed: "The Southern States possess certain staples, tobacco, rice, indigo, &c.,which must be capital objects in treaties of commerce with foreign nations." [FN75] The same distinction is implicit in his denial that the regulation of commerce was outside the competency of a central government: "What are the objects of the government? Commerce, taxation, &c. In order to comprehend the interests of commerce, is it necessary to know how wheat is raised, and in what proportion it is produced in one district and in another? By no means." [FN76] Later, in defending the power of direct taxation, Hamilton predicted that in its absence, the "general government . . . will push imposts (on our commerce) to an extreme." [FN77] As a result, "(o)ur neighbors, not possessed of our advantages for commerce and agriculture, will become manufacturers: their property will, in a great measure, be vested in the commodities of their own productions; but a small proportion will be in trade or in lands. Thus, on the gentleman's scheme, they will be almost free from burdens, while we shall be loaded with them." [FN78] Although there is no example in New York of a clear use of "commerce" in any sense broader than trade or exchange, two statements might mistakenly be so interpreted. In one, Hamilton argued that "one man can be as fully acquainted with the general state of the commerce, manufactures, population, production, and common resources of a state, which are the proper objects of federal legislation." [FN79] Although here, as elsewhere, he uses the term "commerce" narrowly, this passage might be read to indicate that the entire list of activities fell within the power of Congress to regulate commerce among the states. Taken in context, this would be a misreading. Rather, Hamilton is contending here, as he did throughout his career and as did many others, that the advancement of all these economic activities was the proper goal of national legislation. He is not speaking of the specific means or powers granted to Congress by the Constitution to pursue *119 these ends, such as the power of taxation and the power to regulate commerce with foreign nations or among the states. [FN80] Referring to the same problem of knowledge, antifederalist Melancton Smith asserted: To understand the true commercial interests of a country, not only requires just ideas of the general commerce of the world, but also, and principally, a knowledge of the productions of your own country, and their value, what your soil is capable of producing, the nature of your manufactures, and the capacity of the country to increase both. [FN81] Although this statement employs the term "commercial interests" broadly, it still uses the narrow conception of "commerce" as distinct from "productions" and "manufactures" as included among these "commercial" interests. Smith's statement is extremely useful because many of the quotes employed by Crosskey and others as evidence of a broader meaning actually use the term "commercial," not "commerce." Nelson and Pushaw repeatedly use the term "commercial" throughout their article as though it were synonymous with "commerce," and a great many of the sources on which they rely to establish the broader meaning of "commerce" actually use the term "commercial" instead. [FN82] While it seems reasonable at first blush to think that both terms have the same meaning, the statement by Smith undercuts this assumption by explicitly using "commercial interests" to convey a broader meaning than the term "commerce." [FN83] In sum, the original meaning of the regulatory *120 powers granted to Congress might have been broader had Article I, Section 8 granted it the power "to regulate the commercial interests of the States" rather than the power to regulate only "commerce." [FN84] The term "commerce" appears only eight times in the report of the Pennsylvania ratification convention. All uses are consistent with the narrow meaning of "commerce"; none clearly uses a broader meaning. Only three uses add any context to the term, and all are by James Wilson, a member of the Constitutional Convention and a person who Nelson and Pushaw claim understood the term "'commerce' as encompassing not merely the buying and selling of goods, but also antecedent production, laborandwage transactions, and related business services like insurance." [FN85] Wilson, they say, "used 'commerce' to describe all gainful activity." [FN86] In the Philadelphia convention, however, Wilson referred to "the objects of commerce," [FN87] suggesting items being traded. Later he asked, "Is it not an important object to extend our manufactures and our commerce? This cannot be done, unless a proper security is provided for the regular discharge of contracts. This security cannot be obtained, unless we give the power of deciding upon those contracts to the general government." [FN88] His most revealing comment suggesting a strong distinction between "commerce" and other economic activities was this: Suppose we reject this system of government; what will be the consequence? Let the farmer say, he whose produce remains unasked for; nor can he find a single market for its consumption, *121 though his fields are blessed with luxuriant abundance. Let the manufacturer, and let the mechanic, say; they can feel, and tell their feelings. Go along the wharves of Philadelphia, and observe the melancholy silence that reigns. . . . Let the merchants tell you what is our commerce. [FN89] In the North Carolina debates, "commerce" is mentioned eighteen times (including two times in proposed amendments). Like elsewhere, there is no clear use of it in any sense broader than "trade" or "exchange," and there are a few clear examples of its use in the narrow sense in speeches by William Davie. Davie defined the "general objects of the union" to be "1st, to protect us against foreign invasion; 2d, to defend us against internal commotions and insurrections; 3d, to promote the commerce, agriculture, and manufactures, of America." [FN90] Later, he explained why the regulation of commerce, though distinct from agriculture and manufacturing, promoted them: "Commerce, sir, is the nurse of both. The merchant furnishes the planter with such articles as he cannot manufacture himself, and finds him a market for his produce. Agriculture cannot flourish if commerce languishes; they are mutually dependent on each other." [FN91] And, Davie also distinguished between the interests "of agriculture and commerce" and how the Constitution would protect just claims of "the merchant or farmer." [FN92] Merchants were those who bought and sold goods; it was they, not farmers or artisans, who engaged in commerce. In the reports of the South Carolina convention, the word "commerce" is used twentysix times. Charles Pinckney, who had been a delegate to the Constitutional Convention and whose use of the term "commercial interests" Nelson and Pushaw cite as evidence of a broad meaning of the term "commerce," [FN93] equated "the regulation of commerce" and mere "privileges with regard to shipping," when he asked, "(i)f our government is to be founded on equal compact, what inducement can (the Eastern states) possibly have to be united with us, if we do not grant them some privileges with regard to their shipping?" [FN94] Later, he distinguished between those "people (who) are employed in cultivating their own lands" and "the rest (who are) in handicraft and commerce." [FN95] And he immediately expanded upon this *122 by discussing the different "classes" of society comprised of the "commercial men," the "professional men," those engaged in "the mechanical," and the " landed interestthe owners and cultivators of the soil." [FN96] And although he contended that all the other classes should be subservient to the promotion of the last, he defended commerce from the criticism that it was " generally cheating." [FN97] No other use of the term connoted a broader meaning of "commerce"; all uses were entirely compatible with the terms " trade" or "exchange." Virginia wins the prize for the most mentions of the word: seventyfour. Here, as elsewhere, there is not a single instance of "commerce" being used unambiguously in the broader sense. To the contrary, the most striking evidence is the dominance of a conception of commerce that is even narrower than "trade" or "exchange"also manifested by Pinckney's reference in the South Carolina debates to "privileges with regard to shipping." [FN98] In Virginia, I count at least seventeen references that link "commerce" in some way to ports, shipping, navigation, or the "carrying trades." In other words, on these occasions, the term "commerce" is limited to conveying or transporting the articles of trade, rather than to the entire act of trading. [FN99] For example, Richard Henry Lee asked those who doubted the need for the Constitution to "go to our seaports; let him see our commerce languishingnot an American bottom to be seen." [FN100] Edmund Randolph urged members to "(c)ast your eyes to your seaports: see how commerce languishes." [FN101] He observed that "Virginia is in a very unhappy position with respect to the access of foes by sea, though happily situated for commerce," [FN102] and that "(a)s it is the spirit of commercial nations to engross as much as possible the carrying trade, this makes it necessary to defend our commerce." [FN103] Like Lee and Randolph, Francis Corbin also referred to those ports *123 where we had every reason to see the fleets of all nations, he will behold but a few trifling little boats; he will every where see commerce languish; the disconsolate merchant, with his arms folded, ruminating, in despair, on the wretched ruins of his fortune, and deploring the impossibility of retrieving it. [FN104] Future Chief Justice John Marshall asked whether "the Algerines . . . and every other predatory or maritime nation, (cannot) pillage our ships and destroy our commerce, without subjecting themselves to any inconvenience?" [FN105] Madison asserted that "American vessels, if they can do it with advantage, may carry on the commerce of the contending nations." [FN106] William Grayson stated that the riches of all those "maritime powers of Europe . . . come by sea. Commerce and navigation are the principal sources of their wealth." [FN107] And, echoing Marshall, James Innes asked, "Is it not in the power of any maritime power to seize our vessels, and destroy our commerce, with impunity?" [FN108] I present all these quotes not to show that the original meaning of the term "commerce" was limited to shipping. Surely shipping was so closely identified with commerce because it was at that time the indispensable means for the movement of goods. One could easily extend this preoccupation with what is now called the "channels and instrumentalities" of commerce to railroads, canals, and air transport. But this close connection reinforces the narrow meaning of commerce and the purpose for granting Congress the power to regulate it. It also explains why the earliest cases involving the commerce power had to do with boats. [FN109] Moreover, these were not the only references to "commerce" in Virginia. Others of the sort I have canvassed from elsewhere appear here as well. Edmund Pendleton, for instance, viewed "commerce" as the means by which "the people may have an opportunity of disposing of their crops at market, and of procuring such supplies as they may be in want of." [FN110] So synonymous was "commerce" with "trade" that William Grayson worried that "the whole commerce of the United States may be exclusively carried on by merchants residing within the *124 seat of government." [FN111] He surely could not have been including agriculture or manufacturing in his definition of commerce. Despite the strength and consistency of all this evidence, it is also true that persons participating in the process of drafting and ratifying the Constitution frequently used the phrase "trade and commerce." [FN112] This, in the absence of the evidence already presented, might suggest that these terms were not identical. [FN113] On the other hand, if "commerce" is given its broadest connotation as "gainful activity," it would include "trade" within its meaning, and this phrase would still make little sense. Instead, it appears that the phrase "trade and commerce" was something of a couplet like "cease and desist" or, as they say in Disney World, a "full and complete" stop. The couplet "trade and commerce" refers to a single activity that could be, and usually was, called either trade or commerce. Indeed, on two occasions, state convention delegates referred to the power to "regulate trade" rather than to the power to regulate "commerce." [FN114] Should there be any doubt about my interpretation of these statements, go back to the quotes in which there is a context provided and replace the term "commerce" with the term "gainful activity." All of these sentences would be rendered incoherent. Nor are these statements to be dismissed, as Crosskey would have us do, [FN115] because they occur in partisan debate. Remember, we are not asking what purposes or intentions are being expressed by these delegates. We are just asking how they used the term "commerce." So far as these records permit us to judge, there is no conflict over the meaning of this term among the otherwise divided participants in these conventions. From these findings, we can conclude that if anyone in the Constitutional Convention or the state ratification conventions used the term "commerce" to refer to something more comprehensive than "trade" or "exchange," they either failed to make explicit that meaning or their comments were not recorded for posterity. The evidence *125 that survives is entirely consistent on this point and confirms the observation made by Madison late in his life that "(i)f, in citing the Constitution, the word trade was put in the place of commerce, the word foreign made it synonymous with commerce. Trade and commerce are, in fact, used indiscriminately, both in books and in conversation." [FN116] B. Judicial Interpretations of Commerce, 18241935 Thirtyfive years after ratification, in the 1824 case of Gibbons v Ogden, [FN117] John Marshall was called upon to decide whether navigation was included in the power of Congress to regulate commerce among the states. [FN118] He held that it was. From the perspective of original intent, this holding is unremarkable. The above sources, and others unmentioned, [FN119] make clear the intention to subject shipping and navigation to the regulation of Congress. The interpretive challenge is in determining exactly how, if at all, navigation is included in the original meaning of the text. Was it a part of the term "commerce" itself? Or was the regulation of navigation incidental to the regulation of commerce and therefore authorized by the Necessary and Proper Clause? Then there is always the possibility that the framers used words the original meaning of which did not accurately express their intentions, and so they failed to include a power over "navigation" though they believed they had. While the sources I have examined do not provide indisputable answers to these questions, on balance, I think navigation appears to be included within the meaning of the term "commerce" because of its intimate connection to the activity of trading. Indeed, as was noted earlier, the etymology of the term "commerce" is "with" (com) "merchandise" (merci), [FN120] a phrase that could accurately be applied to the "carrying trade," which is how the object of navigation laws was frequently described. [FN121] Perhaps the strongest evidence that "commerce" *126 included navigation is in Article I, Section 9, where Congress is forbidden from enacting any "Regulation of Commerce" that gives preference "to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another." [FN122] Though regulations concerning imports that might favor one port over another could be considered simply rules governing trade or exchange, laws governing the movement of vessels, the enactment of which are partially restricted by this clause, would appear to be rules concerning navigation or the transportation of articles of commerce. In the Philadelphia convention, the extensive debate over whether "navigation acts" should require a supermajority occurred explicitly in the context of the power to regulate commerce. [FN123] For instance, John Rutledge of South Carolina contended that "(i)t did not follow from a grant of the power to regulate trade, that it would be abused. At the worst a navigation act could bear hard a little while only on the S(outhern) States." [FN124] The sort of navigation act contemplated here was an "act encouraging american bottoms & seamen" [FN125] that would incidentally raise the price of freight [FN126] and so impact adversely exporting interests. Moreover, there is a hint that the term "commerce" included navigation in the fact thatlike "commerce and trade"the couplet "commerce and navigation" appears, by my count, four times during the ratification debates, twice in Massachusetts and twice in Virginia. [FN127] On two of these occasions, "commerce and navigation" was distinguished from "various branches of business thereon dependent" [FN128] as well as specifically from agriculture. [FN129] Even expanded to include navigation or transportation, then, commerce is still distinguishable from *127 production. If the public at the time of ratification understood the term "commerce" in the Constitution to include trade, exchange, and navigation, then that is its original meaning. [FN130] On the other hand, though enactment of "navigation laws" was widely thought to be within the power of Congress, several statements suggest that such laws were considered by some at least to be distinct from regulations of commerce and that the term "navigation" was neither synonymous with nor subsumed within the term "commerce." The Virginia and North Carolina ratification conventions formally proposed that the Constitution be amended to state: "That no navigation law, or law regulating commerce, shall be passed without the consent of two thirds of the members present, in both houses." [FN131] This proposed amendment both assumes that Congress has power to pass navigation laws and distinguishes such laws from regulations of commerce. If this and other like evidence is accepted, the admitted power to pass navigation laws is most accurately conceived as an implied power that was embraced by the Necessary and Proper Clause. In which case, the congressional power to regulate transportation is proper only insofar as it is necessary to effectuate the regulation of trade and exchange between state and state. Even statements warmly supporting the enactment of navigation laws suggest that such laws were thought a necessary means to protect commerce rather than the regulation of *128 commerce itself. As Edmund Randoph observed to the Virginia convention: As it is the spirit of commercial nations to engross as much as possible the carrying trade, this makes it necessary to defend our commerce. But how shall we compass this end? England has arisen to the greatest height, in modern times, by her navigation act, and other excellent regulations. The same means would produce the same effects. [FN132] But even this statement could be read as including navigation in the definition of "commerce." In Gibbons, Marshall reached his conclusion that navigation was included in the term "commerce" by relying on the definition of "commerce" as "intercourse." [FN133] This was indeed the first definition of "commerce" offered in Johnson's dictionary. [FN134] Johnson, however, defines "intercourse" as "1. Commerce; exchange" and "2. Communication: followed by with," [FN135] so it is not at all clear that the meaning of "intercourse" (especially when not "followed by with") was itself much broader than trade and exchange. [FN136] Moreover, it is difficult to imagine that John Marshall, much less the founders, believed that the term "commerce" in the Constitution embraced noncommercial intercourse or every form of intercourse. Though the term "intercourse" appears sixtythree times in the records of the ratification debates (sometimes with a broader meaning), on each of the six times it is used in conjunction with "commercial," it is a clear reference to foreign trade though these examples of usage might also be broad enough to include transport for purposes of trade. [FN137] And while "intercourse" *129 sometimes had a broader meaning, we must never forget that the Constitution speaks of "commerce" not the "regulation of intercourse" among the states. During the Progressive Era, the Supreme Court rejected a broad conception of commerce as embracing any gainful activity in favor of the more limited conception of commerce as "trade and exchange" that is so uniformly reflected in the surviving records of the drafting and ratification of the Constitution (though it never hesitated to sanction the power of Congress to regulate the instrumentalities of commerce as well as commerce itself). Beginning with the 1895 case of United States v E.C. Knight Co [FN138] and up to the 1936 case of Carter v Carter Coal Co, [FN139] the Court drew a distinction between "production"such as manufacturing, agriculture, or miningand "commerce" or trade in the things produced. As Chief Justice Fuller wrote in E.C. Knight: "Commerce succeeds to manufacture, and is not a part of it. . . . The fact that an article is manufactured for export to another State does not of itself make it an article of interstate commerce." [FN140] And in Carter Coal, Justice Sutherland defined "commerce" as "the equivalent of the phrase 'intercourse for the purpose of trade."' [FN141] "Mining" he explained, "brings the subject matter of commerce into existence. Commerce disposes of it." [FN142] Sutherland's definition harkens back to Marshall's use of "intercourse" without the unwarranted suggestion that "commerce" embraces every form of intercourse. It also seems a reasonable definition of the term "commercial intercourse." [FN143] Using this distinction, the power of Congress to regulate the economy was sharply restricted. It is no surprise, therefore, that these decisions were roundly condemned by political and academic proponents of national control of the entire economy. [FN144] As was to be expected, the Court was criticized for its failure to acknowledge that the *130 meaning of the Constitution must evolve to meet changing circumstance. [FN145] More surprisingly, however, in light of the historical evidence presented here that strongly supports its usage, the Court was also harshly criticized for distorting the original meaning of "commerce."     08:>[cv}~  v|lrvzk q W!]!p"v"e#k#&&''))--L.R.b/h/$0(0001144)9-9 ::::;!;.<4<{>>m@s@WA]AAA-B3BCCEEE h^HvaJhjq0JaJhjq5\aJ hjqaJh^Hvh^HvaJV".08:kmd e z{$a$$a$4./""%% & &/*0*J*K*+--11444$a$4477";#;<>>??4B5B*B*ph4`4 ^HvHeader  H$4 `"4 ^HvFooter  H$r-`2r ^Hv Macro Text(  ` @ 1$H$OJQJ^J_HmH sH tH 5 zzzzzz z R0VMj}5 ".08:kmde z { ./  /"0"J"K"#%%)),,,,//"3#3466774:5:?@ABCDEFGHIJKLMNOPQRSTUVWXYZ[\]^_`abcdefghijklmnopqrstuvwxyz{~  vlkWYpe" !%%L&b'()+,V1 223.4{66m8W9-:;<==5?@BwC3EGqHHIL[LLNNtPR"TTTmVWAXFYZZJ\]A^^?__`naWbbc.dffhh-jjlmanorxrrstwbxxy|}h}}i~~jŀ!M['ގ4F6^Hvqjq@p5`@UnknownGz Times New Roman5Symbol3& z Arial?5 z Courier New"hJJe}Qe}Q$xxȔȔ2?jq Roger Stattel Roger StattelOh+'0|  8 D P\dltRoger Stattel Normal.dotRoger Stattel2Microsoft Office Word@@(@C@(@Ce}՜.+,D՜.+,< px  USDJJQȔ  Title\@&:JOriginal FileConverted StateConverted DateWPClean VersionCW Macro Package Integration@C:\DOCUME~1\rstattel\LOCALS~1\Temp\CWOWP\BARNETTCOMMERCE2.WPDTrue 09-Mar-20062.8.1.4NONE  !"#$%&'()*+,-./0123456789:;<=>?@ABCDEFGHIJKLMNOPQRSTUVWXY[\]^_`abcdefghijklmnopqrstvwxyz{|~Root Entry F@GAC1TableZ5WordDocument;SummaryInformation(uDocumentSummaryInformation8}CompObjq  FMicrosoft Office Word Document MSWordDocWord.Document.89q