Not a Historian

Preface: I’m not a historian. But I do seem to have a better understanding of the history of the Constitution than Reason.tv and at least one libertarian demagogue. Consider the latest release to their YouTube channel.

Very quickly, the “Commerce Clause” to the Constitution reads thus:

[The Congress shall have power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.

The “Originalist” speaker in the video makes two key claims:

1. Congress generally used to apply the Commerce Clause solely to prevent states from imposing trade barriers on one another. That pattern was violated at some point in the 19th-century, and things have gone downhill ever since.

2. Because this Originalist does not consider most economic activity “commerce,” most of Congress’ modern regulatory authority is unwarranted.

Claim one comes in about two and a half minutes into the clip.

The commerce clause was created to quash the commercial warfare that threatened to break the states apart. And for over one hundred years, Congress exercised the power only in that way.

Now, as much as one can be “right” or “wrong” about historical analysis, the Originalist is wrong on this count. The Commerce Clause was an essential part of the 1816 McCulloch v. Maryland case, in which one of the states sought to tax the Federal government for chartering the Second Bank of the United States in Maryland. Ironically, the Originalist speaker builds a sort of libertarian framework around his obvious historical error by saying that the Clause was used to prevent inter-state trade barriers, where one of its most famous 19th-century violations involved state power run amok against the United States government!

Another came just a few years later, in which the Commerce Clause was violated by the state of New York, leading to the Gibbons v. Ogden ruling. In that case, the state of New York attempted to supersede the federal waterway use licensed to a business owner, Thomas Gibbons, by giving monopoly water use rights in New York to another business owner, Aaron Ogden. There, a state wasn’t trying to inflict a “trade war” on another state – it was trying to forbid the United States from, essentially, maintaining that New York was a part of the Union.

Of course I suspect that any historian who watches the video knows many more examples that violate this guy’s beliefs, but this just caught me off guard with its obvious falsity.

Claim two comes in about eighty seconds into the video:

Commerce at the time of the founding [of the United States] meant trade. You had manufacturing, that was not commerce. You had agriculture, that was not commerce You had retail sales, that was not commerce. Regulating commerce among the states meant regulating the states so a state couldn’t impose trade barriers which were often the precursor to war.

I put the temporally primary claim as the “second” one because I think it speaks to a broader point: To oppose the Commerce Clause, libertarians generally need an incorrect definition of commerce. As anyone who has ever owned a business, managed a supply chain, or anything like that knows, one end product being exchanged for another end product is only a tiny part of the act of selling something. His first example of economic activity, “manufacturing,” definitely fits the bill for any good that requires machinery built out of state, fuel drilled anywhere outside the state, and so on. And “agriculture” has probably always fit the bill in U.S. history, for example when one city supplied virtually all of the packaged meat in the country, or when three states supplied virtually all of the corn on earth. And of course, the meat was packaged in Cincinnati, but grown in other states, shipped using trucks built in other states, packaged in plants owned by people educated in other states…

The operative idea that makes this claim matter is that the Commerce Clause demonstrates that the Founding Fathers understood that the economy was a system. Economies are not just discrete transactions. They occur in an incredibly broad space. If you agree with this claim, you must reject libertarian opposition to the Founding Fathers’ understanding of economics.

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