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America's Counter-Revolution
The Constitution Revisited

From the back cover:

This book challenges the assumption that the Constitution was a landmark in the struggle for liberty. Instead, Sheldon Richman argues, it was the product of a counter-revolution, a setback for the radicalism represented by America’s break with the British empire. Drawing on careful, credible historical scholarship and contemporary political analysis, Richman suggests that this counter-revolution was the work of conservatives who sought a nation of “power, consequence, and grandeur.” America’s Counter-Revolution makes a persuasive case that the Constitution was a victory not for liberty but for the agendas and interests of a militaristic, aristocratic, privilege-seeking ruling class.

Wednesday, May 06, 2009

Constitutional Question of the Day

Where in these words does it state that the national government may regulate only interstate commerce?
The Congress shall have Power ... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
I know it's been interpreted that way since about 1808 (not 1789), but why? Does the text actually support that interpretation and no other?

29 comments:

martin said...

I'd say 'among' is used as a synonym for 'between' here, and 'Commerce between states' doesn't include intrastate commerce.

So as I interpret the text, it allowes the federal government to regulate the following:
- commerce with countries outside the USA
- interstate commerce
- commerce with Indian tribes

So strictly speaking it allowes regulation of more than just interstate commerce, but not regulation of intrastate commerce.

Sheldon Richman said...

But how do you know it was a synonym for "between"? It's hardly idiomatic to speak of commerce among the states in the sense you suggest. And states by and large don't trade among or between themselves. I think we accept these things too readily on flimsy grounds because it accords with a desire to limit government. But that doesn't make it so. I'm channeling William Crosskey (Politics and the Constitution in the History of the United States) here.

Leon Kassab said...

I don't know if the grammar rules have changed since the 18th century, but "among" is the proper usage when there are three or more entities. Since there were more than three states, it is more correct to say "among" the states rather than "between" the states.

Though honestly, I doubt grammar is among the actual reasons for its interpretation.

Sheldon Richman said...

Leon, that's not quite right. Any individual transaction is between two parties.

Leon Kassab said...

ah, I see what you're getting at. But alas, semantics is a game those government types won't allow people like you and me to play.

Sheldon Richman said...

There is a line of thinking, not to be casually dismissed, that says the Constitution was not meant to create so limited a government as we have told ourselves. The story of the 10th Amendment is highly instructive. Look up Article II of the Articles of Confederation and compare to the 10th Amendment. Then realize that the demigods at Philadelphia and the first Congress rejected Article II.

Sheldon Richman said...

Again, drawing on Crosskey, read the clause this way: "...to regulate commerce ... among (the people of) the several states." (State governments don't trade with one another; neither do territories.) Is that what they meant? Isn't that more likely than the conventional reading?

martin said...

Scheldon Richman,

But how do you know it was a synonym for "between"?It seems the most natural interpretation to me. And because English is not my native language, I looked it up. This is what Merriam-Webster comes up with:

Main Entry:
among
Pronunciation:
\ə-ˈməŋ\
Variant(s):
also amongst \-ˈməŋ(k)st\
Function:
preposition
Etymology:
among from Middle English, from Old English on gemonge, from on + gemonge, dative of gemong crowd, from ge- (associative prefix) + -mong (akin to Old English mengan to mix); amongst from Middle English amonges, from among + -es -s — more at co-, mingle
Date:
before 12th century
1: in or through the midst of : surrounded by [hidden among the trees]
2: in company or association with [living among artists]
3: by or through the aggregate of [discontent among the poor]
4: in the number or class of [wittiest among poets] [among other things she was president of her college class]
5: in shares to each of [divided among the heirs]
6 a: through the reciprocal acts of [quarrel among themselves] b: through the joint action of [made a fortune among themselves]
usage see between

http://www.merriam-webster.com/dictionary/among

6a seems to me the most plausible meaning.

Another reason for interpreting it this way, one that a came up with after writing the post above, is that if the text was meant to include intrastate commerce also, 'all commerce inside the USA' would have been sufficient to cover both the 'commerce among the states' and the 'commerce with Indian Tribes'.

Leon Kassab,

"among" is the proper usage when there are three or more entities.Merriam-Webster disagrees:

There is a persistent but unfounded notion that between can be used only of two items and that among must be used for more than two.(...)

http://www.merriam-webster.com/dictionary/between

Leon Kassab said...

Interesting... so the rule is more in-depth than I thought. Thanks for the link

Sheldon Richman said...

But states do not and did not engage in reciprocal acts of commerce, at least not to any great extent, Martin. And it would be unidiomatic to say "commerce among the several states" when you mean "between/among inhabitants of different states."

Definition no. 3 seems closer to what the framers had in mind.

Leon Kassab said...

Rereading everything in this discussion so far, I realize that I was completely missing the point (pre-caffeine reading I suppose).

To make sure I'm not still being dense, let me rephrase your point to see if I understand:

Sheldon, you are saying that the wording of the commerce clause can be interpreted to allow the congress the ability to regulate any commerce within the United States?

In other words, the clause was left open enough by the founders to encompass the regulation of any and all commerce?

Sheldon Richman said...

Yes, interpreted that way without mental contortions. Crosskey goes further and argues that the word usage of the time lends support to that interpretation. The framers were not laissez fairists.

Sheldon Richman said...

Re between and among: While it's okay (if stilted) to say, "The commerce between Tom, Dick, and Harry has been very lucrative," one would never say, "The commerce among you and me has been a success."

In other words, "between" may be used with more than two things, but "among" cannot be used idiomatically with only two things. English-speakers today don't talk like that, and they didn't do so in the eighteenth century either. So "commerce among the several states" does not sound like mere interstate transactions. It sounds more like a general condition: commerce among the people of the state.

Ineffabelle said...

Well yes.

This is why the Anti Federalists freaked the hell out when the constitution was presented.

Of course the Federalists knew that in each state a certain elite could be counted on to support this kind of government.

martin said...

But states do not and did not engage in reciprocal acts of commerce, at least not to any great extentDoesn't the same objection apply to definition 3? I mean, if you interpret 'among' according to definition 3, I would interpret the text - taken literally - as refering to states engaging in commerce.

Sheldon Richman said...

But we can't interpret it to refer to states', in the corporate sense, engaging in commerce because that wouldn't have been an issue. Why would they have meant that? The only interpretation that does not involve a stretch is that it was a power to regulate commerce, period. The "interstate" idea was imposed later. This doesn't mean that the framers wanted detailed regulation or were central planners. But they did believe that this prerogative belonged to the national government, as opposed to the states.

Sheldon Richman said...

Correction:

Above I wrote: "It sounds more like a general condition: commerce among the people of the state."

That final word should have been plural, states.

martin said...

But we can't interpret it to refer to states', in the corporate sense, engaging in commerce because that wouldn't have been an issue. Why would they have meant that?Don't get me wrong, I don't think that's what they meant, I think it's a metaphor. I think a state engaging in commerce is a metaphor for people of that state engaging in commerce with other people outside that state, wether you use definition 3 or definition 6.

Let me put it another way: 'commerce between Texas and Arizona', usually means 'people from Texas engaging in commerce with people from Arizona'. Likewise IMO 'commerce between/among Texas, Arizona and California' means 'people from Texas engaging in commerce with people from Arizona and California, and people from Arizona engaging in commerce with people from California', in short: interstate commerce involving Texas, Arizona and California. Likewise I think 'commerce among the states' means interstate commerce involving all states (of the USA).

martin said...

Hmmm, somehow my newlines get lost sometime...

Sheldon Richman said...

Martin, it could mean that, although the use of "among" for two parties is unidiomatic. However, it also could mean, without stretching the language, all commerce within the United States. That's my point. We can't tell those who interpret it that way that they are wrong.

But I think we can go further. It strikes me that the interstate interpretation is an imposition, whereas the other reading is not. The framers were capable of saying "interstate" or of specifically excluding intrastate commerce.

martin said...

I thought about this for a while:

It sounds more like a general condition: commerce among the people of the states.It almost had me convinced, but I have a problem with other applications. E.g. 'swine flu among the states'. Obviously states in the corporate sense cannot contract swine flu, but still I have a hard time seeing it as 'swine flu among the people of the states'. To me it seems this phrase can only refer to actual states (in the corporate sense) suffering from swine flu, and thus as absurd.

(Maybe this shows a lack of understanding of the English language on my part, I don't know.)

Sheldon Richman said...

We wouldn't say it, but "swine flu among the several states" could only means among the people of the states. It does not exclude swine flu within states.

martin said...

We wouldn't say itThat's what I mean. On the other hand would you say 'rivalry among (several) states'?

Sheldon Richman said...

"Rivalry among the several states" means something, though you'd want to know what the rivalry was over. The state governments could be contending for something, say, increased federal money. But that doesn't carry over to "commerce among the several states," given that states do not engage in commerce in the U.S.

martin said...

I agree. But it could also mean rivalry at the level of people in the states, I think. (Like when you would say 'rivalry among neighbourhoods'.) In that case it would mean that Texans rival Californians, but it would not mean Texans rival other Texans. And that does carry over to 'commerce among the states'.

Sheldon Richman said...

I don't see why "rivalry among the people of the several states" rules out intrastate rivalry.

At the very least we have a vague phrase that in no way compels an interstate interpretation.

martin said...

I don't see why "rivalry among the people of the several states" rules out intrastate rivalry.

If it's worded like that, it doesn't. But I think 'rivalry among the states' means 'rivalry among the populations of the states' which does rule out intrastate rivalry.

Sheldon Richman said...

We are going in circles now. I think my position is clear above. Unless some new point arises, I'll end by saying that if we were judging the phrase without knowing it came from the Constitution and without knowing U.S. legal history, I doubt anyone would give it an exclusively interstate reading. There is nothing compelling about that interpretation. So far this has been an analysis of the wording alone. It is worth noting in this connection, that the major framers favored consolidated power. They lamented the lack of a uniform national commercial policy under the Confederation. Moreover, Madison wanted Congress to be able to veto state laws. See also the separate post about the 10th Amendment vs. Article II of the Articles of Confederation.

martin said...

Ok, we'll agree to disagree.