In Europe in the sixteenth and seventeenth centuries, trade rapidly expanded. An important part of that expansion was increasing articulation of trade — from producer to consumer, to producer to trader to consumer, to producer to trader to trader to consumer. Exchanges among traders seem not to have any conventional, worthy motivation. Individual traders do not produce anything. The word “commerce” began to be used in English in the sixteenth century for this sort of growing activity. Commerce described a network of exchanges among peers in trading. Commerce was a forerunner of what today is heralded as peer production.
This understanding of commerce has significant legal implications. What is commonly called the “Commerce Clause” of the U.S. Constitution shapes the U.S. federal structure of government. The Commerce Clause gives the U.S. Congress the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” A big question in constitutional law: what is the scope of this enumerated power?
Professor Natelson’s impressive recent scholarship has examined the legal meaning of commerce at the time of the writing and ratification of the U.S. Constitution. By impressive, I mean this kind of work:
I collected evidence from eighteenth century legal works at the Bodleian Library at the University of Oxford, England, with additional excursions to Oxford’s Codrington Library and the library at the Middle Temple in London, one the England’s Inns of Court. Using the Justis database of the English reports, I examined every use of the term “commerce,” both in English and in Law French, in cases reported after the Year Books and prior to 1800 [i.e. all cases reported in the sixteenth, seventeenth, and eighteenth centuries]. I also examined the use of the term in all available English dictionaries and abridgments, and in various legal treatises. (Natelson, p. 15)
Every law student should look at this research if only to gain appreciation for the smell of primary sources. Here’s the definition of merchant from Giles Jacob’s popular New Law-Dictionary (8’th edition, 1762):
the Word Merchant formerly extended to all Sorts of Traders, Buyers, and Sellers. But every one that buys and sells is not at this Day under the Denomination of a Merchant; only those who traffick in the the Way of Commerce, by Importation or Exportation, or carry on Business by Way of Emption, Vendition, Barter, Permutation or Exchange, and which make it their Living to buy and sell, by a continued Assiduity, or frequent Negotiation, in the Mystery of Merchandising, are esteemed Merchants. (quoted in Natelson, p. 27)
Merchants were thus associated with group-specific assets and a distinguished social status. That is no different from law professors or any other long-lasting human group. Peer production is a general feature of human sociality that emerges across vastly different institutional organizations and human activities.
Law professors writing about the Commerce Clause have not sufficiently acknowledged the importance of peer production. Based on his thorough examination of primary sources, Professor Natelson summarized his findings:
In legal discourse the term “commerce” was almost always a synonym for exchange, traffic, intercourse. When used economically, it referred to mercantile activities: buying, selling, and certain closely-related conduct, such as navigation and commercial finance. It rarely, if ever, encompassed all gainful economic activity. (Natelson, pp. 15-6)
One problem with this summary is that the terms “economically” and “economic” are anachronisms in the context of his sources. Economics as a stand-alone analytical term did not develop until the late nineteenth century. More significantly, commerce was added to descriptions of trade and exchange to highlight the new group-specific quality of trade. Commerce described new human relationships that emerged with the expansion of trade.
The meaning of commerce is more closely related to peer production than to distinctions among different types of activity. Consider, for example, the interpretation of the Commerce Clause that Professor Akhil Reed Amar, an eminent scholar at Yale Law School, put forward in his recent book, America’s Constitution: A Biography. With relatively little consideration of primary sources, Professor Amar noted that commerce in 1787 “had a broader meaning referring to all forms of intercourse in the affairs of life, whether or not narrowly economic or mediated by explicit markets” (p. 107). This interpretation, highly valued in modern legal scholarship, is organized with respect to distinctions concerning “economic” and “markets.” At the same time “all forms of intercourse in the affairs of life” is a remarkable inarticulate category, even if just limited to the daily life of eminent legal scholars. Scholars, as well as merchants, clearly recognize peers. That recognition affects their behavior. The category “all forms of intercourse in the affairs of life” makes persons peers at a far too abstract level to be a sensible interpretation of the meaning of commerce in the Commerce Clause.
As a matter of bureaucratic work, U.S. federal courts decide legal cases concerning the Commerce Clause. Constitutional scholars merely instruct the Supreme Court on how to decide cases correctly, grade the Supreme Court’s work, and re-argue and re-decide cases, as necessary. At least one leading constitutional scholar does, however, engage in other activities. Recent cases concerning the Commerce Clause include United States v. Lopez, United States v. Morrison, and Gonzales (Ashcroft) v. Raich.
In Rapanos v. United States, the Supreme Court decided whether certain collections of water are within the scope of the U.S. Army Corps of Engineers’ authority under the federal Clean Water Act. That Act gave the Corps authority to regulate “navigable waters” so as to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Deciding whether the Corps exceeded its statutory authority under the Clean Water Act is an issue of statutory law, not constitutional law.
Rapanos, however, does offer insights into federal power under the Commerce Clause. Even though, as a Rapanos dissent noted, “[the Nation’s waters] are so various and so intricately interconnected,” the Clean Water Act does not declare federal authority to regulate all use of “navigable waters.” For example, choosing between persons to get an allotment of water from a well has nothing to do with the purpose of the Act and presumably would not be authorized under the Act. No federal statute has been interpreted to authorize federal regulation of all water use in the U.S. That’s rather different from asserted federal jurisdiction for radio use.
Rapanos also highlights the difficulty of judging relationships between waters. Whatever the actual meaning of commerce as written in the Constitution, it surely concerned relations among persons. Promoting and sustaining relations among person is a central focus of innovation and entrepreneurship on the Internet today. Think of free software/open source software projects, blogs, Wikipedia, del.icio.us, MySpace, and youtube. Notwithstanding the gentle teasing of a former colonial overlord, the U.S. Constitution has probably been one of the world’s most successful pieces of social software. You would never guess that from that past decade of debate about the Commerce Clause.