Commerce, Economic Activity, Obamacare, and the Anti-Federalists
Recently, I have written a couple of short op-eds (see here and here) arguing that commerce, to the Framers and ratifiers of the Constitution, did not mean economic activity, gainful activity, etc. It means trade–among the states or with foreign nations, or with Indians. The purpose of the interstate Commerce Clause, which should guide interpretation, is creation of a national free trade zone. I have recently been reading through the Anti-Federalist Papers and came across this argument by “Brutus” regarding the power to tax:
It was observed in my last number, that the power to lay and collect duties and excises, would invest the Congress with authority to impose a duty and excise on every necessary and convenience of life. . . . Cider is an article that most probably will be one of those on which an excise will be laid, because it is one, which this country produces in great abundance, which is in very general use, is consumed in great quantities, and which may be said too not to be a real necessary of life. . . . It might be necessary, in order to collect the excise on cider, to grant to one man, in each county, an exclusive right of building and keeping cider-mills, and oblige him to give bonds and security for payment of the excise; or, if this was not done, it might be necessary to license the mills, which are to make this liquor, and to take from them security, to account for the excise; or, if otherwise, a great number of officers must be employed, to take account of the cider made, and to collect the duties on it.
Porter, ale, and all kinds of malt-liquors, are articles that would probably be subject also to an excise. It would be necessary, in order to collect such an excise, to regulate the manufactory of these, that the quantity made might be ascertained or otherwise security could not be had for the payment of the excise. Every brewery must then be licensed, and officers appointed, to take account of its product, and to secure the payment of the duty, or excise, before it is sold. . . .
In other words, Brutus feared that Congress well might use its power to tax along with the Necessary and Proper Clause to not only tax cider or ale, but also to regulate the manufacturing process, to license distilleries, etc. Congress does today use its enumerated powers in such a manner, but under the guise of commerce and not taxation. So why didn’t Brutus make his argument with the commerce power rather than the power to tax? Based on what has happened in America, such an argument would have been spot on.
The simple answer is that Brutus and other Americans did not understand “commerce” to be so broad to be susceptible to these house-that-Jack-built arguments. Like most Anti-Federalists, Brutus believed that Congress needed a power to regulate internal and foreign trade. But he did not dream that this power over trade would be transformed into a power over any action or inaction that potentially could affect the national economy. Thus, he saw the taxing power as more dangerous—more likely to be used to regulate intrastate, local matters that are no business of the national government.
Hence, Brutus provides more evidence as to why no one in 1787-88—not even the Anti-Federalists—thought that “commerce” was broad enough to give the federal government a general police power. Commerce to them meant trade. This should guide our interpretation of commerce as we consider the constitutionality of Obamacare.