Veritas News – To Regulate Commerce among the Several States Part I


Veritas News Service Report

by Guest Columnist Johnathan Masullo


To Regulate Commerce among the Several States

Part I

The President signed the Patient Protection and Affordable Care Act, also known as Obamacare, into law on the 23rd of March, 2010.[1] The justification to pass said legislation was the “commerce clause”[2] in the Constitution of the United States of America. Throughout the existence of these United States, a lot of unconstitutional legislation was passed in the name of the “commerce clause.” The author does not possess a Doctor of Juris, nor practices law, nor is a “constitutional scholar,” but the author does understand the English language and logic very plainly than most perverted attorneys and judges.[3] The author shall attempt to delineate the meaning of the “commerce clause,” gather the thoughts of the framers of the Constitution, and review the opinions of the Courts. A word of warning, this commentary will collapse this topic Barney-style.[4]

The Congress has the sole power “[t]o regulate commerce with foreign nations, and among the several States, and with the Indian tribes.”[5] The focus of this article is the commerce among the several States. Definition is a matter of importance to any student of logic. What does ‘regulate’ mean? First, the word ‘regulate’ is used as a verb. What is a verb? A verb “expresses action, motion, being, suffering, or a request or command to do or forbear anything.”[6] Second, what does ‘regulate’ mean? Regulate means “[t]o adjust by rule, method, or established mode.”[7]

What is ‘commerce?’ First, ‘commerce’ is used as a noun. What is a noun? A noun is a person, a place, a thing, or an idea. In this case, ‘commerce’ is an idea because it is conceptual. Second, what does ‘commerce’ mean? Commerce is “an interchange or mutual change of goods, wares, productions, or property of any kind, between nations or individuals, either by barter, or by purchase and sale.”[8] Put differently, ‘commerce’ is the exchange of commodities for commodities, or “any reciprocal agreements between two persons, by which one delivers to the other a thing, which the latter accepts, and for which he pays a consideration; if the consideration be money, it is called a sale; if any other thing than money, it is called exchange or barter.”[9]

What is a commodity? A commodity is “[t]hat which affords convenience, advantage, or profit, especially in commerce, including everything movable that is bought and sold (except animals), — goods, wares, merchandise, produce of land and manufactures, etc.”[10] What does ‘among the several States’ mean? First, the word ‘among’ is a preposition. What is a preposition? A preposition is “a word usually put before another to express some relation or quality, action or motion to or from the thing specified.”[11] ‘Among’ means “[m]ixed or mingled; surrounded by.”[12] With all of that mentioned, the reader may conclude that the Congress has the power to regulate a regular mode of exchange of commodities between the several States at their external boundary line, which may be properly called interstate commerce. The Latin word for among or between is inter, which is a preposition.[13] The Congress has no delegated power to regulate commerce within the several States. To make this clear, the author, who works in the computer field, will use the model of networking in a hypothetical scenario.

Rooms A, B, C, and D have ten computers. The ten computers in A are connected to each other. This concept is called intranet. What is an intranet? An intranet is a local or restricted communications network. The Latin word intra means within or on the inside.[14] Likewise, B, C, and D have an intranet. There is no way for the rooms to communicate to each other. The rooms can only communicate within themselves. The system administrator[15] of A may regulate the communication within his room; however, he cannot regulate the communication within the other rooms. Equally, the system administrators of B, C, and D regulate the communication in their respective jurisdiction.

The system administrator of A decides to make a policy agreement (or treaty) with the system administrator of D. Therefore, A and D become connected to each other and both system administrators follow the rules outlined in the policy agreement. Since A and D are connected to each other, they established an internet. What is an internet? An internet is an interconnection of networks of computers.[16] B and C follow suit, devise an internet agreement, and become interconnected. Instead of having two rooms interconnected, the four system administrators decide to interconnect all four rooms to make a global internet. They gather, they talk policy, and they come to an agreement. Now all four rooms are interconnected.

Each system administrator follows an intranet policy of his respective jurisdiction. The system administrators follow an internet policy to keep communication regular between the rooms. Considering human nature, one system administrator disobeys the internet policy. As the reader would expect, this will upset the other system administrators and ensue rebellion. Soon the system administrators fail to obey the internet agreement, thus causing communication issues between the rooms and the end users suffer.

To solve this struggle, the system administrators ask the Board of Trustees to regulate communication among the several rooms. Considering the Board of Trustees is the legislature of this company, they will regulate an ordinary method of exchange of communication between the several rooms. The Board of Trustees may regulate the communication between the rooms; however, the Board of Trustees may not regulate the communication inside the rooms. The computer network within the rooms is intranet; on the other hand, the computer networks between the rooms are internet.

The same circumstance as above applies to the several States and the Congress. Think of rooms A, B, C, and D as the several States. State A produces corn, State B produces wheat, State C produces tomatoes, and State D mines gold. Each State may regulate the commerce within itself. This concept is called intrastate commerce. What if the several States wanted to trade with each other? Like the networking example above, how can the several States know that one State will not swindle or injure another? There should be a way of reasonable exchange of commodities between the several States. This is where the Congress comes in to play.

The people of these United States delegated to the Congress to regulate the commerce between the several States (interstate commerce), not within the several States (intrastate commerce). Each State is to follow these fair rules, established by the Congress, when trading commodities between each other. That is the scope of Article I, Section 8, Clause 3. If the Congress regulates commerce beyond its scope, that is, within the several States, then the law is unconstitutional.

During the Articles of Confederation, tensions grew between the several States owing to unfair commerce practices. Mr. James Madison (1751 – 1836), at the Constitutional Convention, enlightened, “[C]ommerce led to an exercise of the power, separately, by the states, which not only proved abortive, but engendered rival, conflicting, and angry regulations. Besides the vain attempts to supply their respective treasuries by imposts, which turned their commerce into the neighboring ports, and to coerce a relaxation of the British monopoly of the West India navigation, which was attempted by Virginia, the states having ports for foreign commerce taxed and irritated the adjoining states trading through them–as New York, Pennsylvania, Virginia, and South Carolina. Some of the states, as Connecticut, taxed imports from others, as from Massachusetts, which complained in a letter to the executive of Virginia, and doubtless to those of other states. In sundry instances, as of New York, New Jersey, Pennsylvania, and Maryland, the navigation laws treated the citizens of other states as aliens.”[17]

The framers of the Constitution wanted to cure that problem. After the Constitutional Convention, the finalized Constitution was proposed to the people of the several States to adopt. Mr. Madison clarified the nature of Article I, Section 8, Clause 3 of the Constitution, stating the following:

“The defect of power in the existing confederacy, to regulate the commerce between its several members, is in the number of those which have been clearly pointed out by experience. To the proofs and remarks which former papers have brought into view on this subject, it may be added, that without this supplemental provision, the great and essential power of regulating foreign commerce, would have been incompleat, and ineffectual. A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out, to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter, and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquility. To those who do not view the question through the medium of passion or of interest, the desire of the commercial States to collect in any form, an indirect revenue from their uncommercial neighbours, must appear not less impolitic than it is unfair; since it would stimulate the injured party, by resentment as well as interest, to resort to less convenient channels for their foreign trade. But the mild voice of reason, pleading the cause of an enlarged and permanent interest, is but too often drowned before public bodies as well as individuals, by the clamours of an impatient avidity for immediate and immoderate gain.”[18]

Mr. Thomas Jefferson (1743 – 1826) verifies with the following:

“The power given to Congress by the Constitution does not extend to the internal regulation of the commerce of a State (that is to say, of the commerce between citizen and citizen) which remain exclusively with its own legislature, but to its external commerce only; that is to say, its commerce with another State, or with foreign nations, or with the Indian tribes.”[19]

Therefore, the purpose of Article I, Section 8, Clause 3 is to create a regular method of exchange of commodities to prevent animosity and commerce issues between the several States. The founding fathers concurred that management of commerce is a function best left to the people themselves, but the regulation of commerce in the public interest, of course, to the extent enumerated by the Constitution, is the business of the Congress. Let us examine what the Courts have to say regarding the “commerce clause.”

In Livingston v. Van Ingen, the Court said, “The congressional power relates to external, not to internal commerce, and it is confined to the regulation of that commerce. . . . Congress, indeed, has not any direct jurisdiction over our interior commerce or waters. . . . [C]ongress have concurrent jurisdiction over the navigable waters no further than may be incidental and requisite to the due regulation of commerce between the states, and with foreign nations.”[20]

In Corfield v. Coryell, the Court said, “Commerce with foreign nations, and among the several states, can mean nothing more than intercourse with those nations, and among those states, for purposes of trade, be the object of the trade what it may; and this intercourse must include all the means by which it can be carried on, whether by the free navigation of the waters of the several states, or by a passage over land through the states, where such passage becomes necessary to the commercial intercourse between the states. It is this intercourse which congress is invested with the power of regulating, and with which no state has a right to interfere. But this power, which comprehends the use of, and passage over the navigable waters of the several states, does by no means impair the right of the state government to legislate upon all subjects of internal police within their territorial limits, which is not forbidden by the constitution of the United States, even although such legislation may indirectly and remotely affect commerce, provided it do not interfere with the regulations of congress upon the same subject.”[21]

At this point in time, i.e., 1823, the Courts agree that the Congress has the power to regulate commerce among the several States (interstate commerce), not inside the several States (intrastate commerce). The Courts also agree the Congress has concurrent jurisdiction over navigable waters affecting commerce between the several States and foreign nations; otherwise, the several States have jurisdiction over their own navigable waters. To review, the Congress has the power to regulate interstate commerce. The power was delegated to alleviate the ills under the Articles of Confederation. In Part II, the author will examine if the Courts keep their word or yearn for enlargement of the General Government.

[1] Stolberg, Sheryl Gay, and Robert Pear. “Obama Signs Health Care Overhaul Bill, With a Flourish.” New York Times [New York City] 23 Mar 2010. Web. 1 Mar. 2012.

[2] Article I, Section 8, Clause 3, Constitution of the United States of America

[3] This may seem like an ad hominem attack towards attorneys and judges, but the legal profession gained a notorious reputation since recorded history. “And he said, ‘Woe to you lawyers also! For you load people with burdens hard to bear, and you yourselves do not touch the burdens with one of your fingers’” (Luke 11:46 ESV). “Woe to you lawyers! For you have taken away the key of knowledge. You did not enter yourselves, and you hindered those who were entering” (Luke 11:52 ESV).

[4] An idiom or slang expressing to simplify.

[5] See 2 supra

[6] Webster, Noah. “Verb.” An American Dictionary of the English Language. 1st ed. Vol. II. New York, NY: S. Converse, 1828. Print.

[7] Ibid. “Regulate.”

[8] Ibid. “Commerce.”

[9] Bouvier, John. “Commerce.” A Law Dictionary. 1st ed. Vol. I. Philadelphia, PA: T. & J. W. Johnson, 1839. Print.

[10] “Commodity.” Webster’s Revised Unabridged Dictionary. Rev. ed. Springfield, MA: G & C. Merriam Company, 1913. Print.

[11] Webster, Noah. “Preposition.” An American Dictionary on the English Language. 1st ed. Vol. II. New York, NY: S. Converse, 1828. Print.

[12] “Among.” Webster’s Revised Unabridged Dictionary. Rev. ed. Springfield, MA: G & C. Merriam Company, 1913. Print.

[13] “Inter, adv. and prep. with acc. I. Adv. in the midst, between (poet and rare). II. Prep. with acc. between, betwixt, among, amid.” Smith, William. “Inter.” A Latin-English Dictionary. London, England: John Murrary, 1855. Print.

[14] Ibid. “Intra.”

[15] A System Administrator is someone who maintains and manages a computer or computer network and plans installations of network wide software.

[16] There is a difference between “internet” and “Internet.” The capitalization of I in the latter means public (WWW); whereas, lowercase i means private.

[17] Elliot, Jonathan. The Debates in the Several State Conventions on the Adoption of the Federal Constitution. 2nd ed. Vol. V. Washington, D.C.: Editor, 1845. 119. Print.

[18] Madison, James. “XLII.”The Federalist: A Commentary on the Constitution. Ed. Henry Cabot Lodge. New York, NY: G.P. Putnam, 1888. 262. Print.

[19] Thomas Jefferson: Opinion on Bank, 1791. ME 3:147

[20] Livingston v. Van Ingen, 9 Johns. R., 507, 585 (1812)

[21] Corfield v. Coryell, 6 Fed. Cas. 546 (1823)

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