Wednesday, September 10, 2008



In 1787, the Framers of the Constitution included this language into the section defining Congressional powers in the nascent Republic: “The Congress shall have Power…[t]o regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const. Art. I, § 8, clause 3. They were attempting to remedy the problems engendered by entrusting control over commerce to individual States. Under the Articles of Confederation, local commercial rules ensnared interstate business. By granting a new power to the national government, the Framers hoped to obliterate the handicaps that characterized commerce among the Colonies in times past.

Yet the historical rationale begs an important question: If “commerce” is a matter of national concern, what, exactly, is commerce? To answer this question, recourse to history is essential, but recourse to language is equally vital. In its strictest, etymological essence, “commerce” means “an interchange of goods or commodities” as on a “market” between “foreign countries or within the same country.” Unabridged v. 1.1, Meaning 1. This meaning follows from the Latin roots “mercari” (to “buy” or “deal;” this word also gives rise to the Spanish “el Mercado” and Italian “il mercato” or “market”) and “com-“ (“together”). Taken as a compound, “commercium” means literally “to buy, trade or deal together.” In English, “commerce” also means “social relations, esp. the exchange of views, attitudes, etc.” Unabridged v. 1.1, Meaning 2, and “sexual intercourse,” v. 1.1 Meaning 3. The fact that the word “commerce” can possess a sexual connotation is not surprising. The word encompasses close contact between human beings. Generally it refers to economic contact. But both history and usage show that the word means far more than that.

Some Supreme Court Justices have argued that the word “commerce” means no more than “buying and selling goods in a point-of-sale transaction.” This reading utterly disregards both linguistic and historical evidence that shows the word has far more sweeping meanings. When examining any word in the Constitution, it is helpful to consider 18th Century sources to determine what connotations the word had at the time. Jonathan Swift, a famed 18th Century satirist, used the word “commerce” in Gulliver’s Travels, Part II (1735). In describing the isolation of the Brobdignagians’ home country, he writes: “There is not one Sea-port in the whole Kingdom; and those Parts of the Coasts into which the Rivers issue, are so full of pointed Rocks, and the Sea generally so rough, that there is no venturing with the smallest of their Boats; so that these People are wholly excluded from any Commerce with the rest of the world.” Gulliver’s Travels 114. Swift does not use the word strictly to refer to economic contact with others; he uses the word to refer to any contact with others. Perhaps the goal of human contact is ultimately economic, but the word “commerce” itself—at least in the 18th Century—suggests that it refers to the whole universe of human contact and activity relating to that contact, not just buying and selling goods.

Chief Justice John Marshall read the word consistent with Swift. In the United States Supreme Court’s first brush with the Federal power to regulate “commerce among the States,” Gibbons v. Ogden, 9 Wheat 1 (1824), Marshall framed his inquiry: “[T]o ascertain the extent of the power it becomes necessary to settle the meaning of the word. [] Commerce, undoubtedly, is traffic, but it is something more; it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse.” Marshall was born in 1755. He was educated in the 18th Century and likely understood words in the same way that the 1787 Framers understood them. Like Swift, Marshall understands commerce as encompassing more than mere economic exchange. And like the accepted dictionary definitions, Marshall uses the word “intercourse” to describe commerce. Admittedly, he does not refer to “sexual intercourse,” Meaning 3, but it is nonetheless significant that he uses the word “intercourse” to refer to the myriad human activities that ostensibly culminate in economic exchange. Applying this definition, Marshall had no trouble concluding that operating a ferry service in New York harbor constituted “commerce.” After all, operating ships provides a means for humans to meaningfully interact with one another. In most cases, such contact between people will lead to economic exchange. In other cases, it will not. In either case, it is “commerce” as Marshall and Swift would have understood the word.

Given this sweeping definition, no one should be surprised that Congress used it to assert enormous regulatory authority over virtually all activity in the United States. During the New Deal, the Supreme Court simply elaborated on Marshall’s exposition in Gibbons v. Ogden to announce the familiar rule that Congress has authority to legislate on any matter—including matters that occur solely within a single State—as long as the matter “affects commerce.” Wickard v. Filburn, 317 U.S. 111 (1942). If commerce simply means human contact and activity that may or may not lead to economic exchange, then Congress’ power knows no bounds. Conservative politicians and Supreme Court Justices decry this development as an unwarranted expansion. But all alarmism aside, there is a fundamental question at work here: Is all American life “commercial?” If it is, there should be no problem for Congress to regulate it.

To say that American life is almost totally “commercial” in nature is not so far-fetched. Everyday experience in early 21st Century life demonstrates that America exists to support commerce. Individuals in America educate themselves to work and their work defines them: They school themselves in “Finance,” then wear their employers’ logos on their clothing, even on days off. The question "What do you do?" is tantamount to asking "Who are you?" Americans evaluate one another according to their incomes and adopt adages such as: “He who dies with the most toys wins.” They live in a society in which “commercial messages (ie, “advertisements”) ceaselessly bombard the senses from all possible directions. They measure success in commercial terms and equate happiness with the power to consume at will. And from a historical perspective, Britain referred to America as “the North American Plantations.” Our own Constitution refers to “Rhode-Island and Providence plantations” when discussing Rhode Island’s entitlement to a representative in Congress. U.S. Const., Art. I, § 2. By definition, plantations are estates that exist to generate large profits by exploiting resources and labor. They are quintessentially commercial. America began as a money-generating “plantation.” Immigrants and colonists came to America to better themselves commercially by exploiting new, untapped resources. There is little difference today: All American life is commercial.

Perhaps it is a tautology to say that “all American life is commercial.” But can we dare to explore those areas in life that are not commercial? In the 18th Century understanding, commerce implied contact between people. Today, we understand the term to include human contact with some economic overtones, even if they are distant or potential. On these understandings, non-commercial life must include the realm of individual development and conscience. The life that we nurture in our own minds—our personality, our beliefs, our opinions, our likes, our dislikes, our emotions, our tastes—exists regardless of contact with others. They arise within us, simply because “we are who we are.” Certainly other people influence our internal processes, but they are not the active participants. And there certainly is no requirement that there be an economic overtone to our contact with others. In commerce, there is a dynamic interplay between at least two people who manifest external signs to one another in order to achieve some ultimate material benefit. In non-commercial life, the individual alone is important, and material benefit is not always the central goal. And there are certainly cases where an activity may be either commercial or non-commercial, depending on the individual’s motivation. Self-enrichment through education, for example, may not have material benefit as its central goal. Pursuing education for ultimate economic capacity, on the other hand, renders the same activity (education) more commercial.

But where does non-commercial life figure into the American scheme? Is it really that important? The American phrase “real life” may shed light on the question. All too often, people use this phrase to describe the harsh realities of commercial life, in which a person must honor obligations to superior parties in order to avoid negative consequences such as forced payments and homelessness. Young adults, especially, hear it from older, authoritative figures as a warning to put aside non-commercial pursuits in order to “survive” in the commercial world. In other words, it will do you no good to live in an individual world of ideas when you have rent to pay (a key commercial concern). Revealingly, the phrase is “real life.” Does this mean that paying rent is real, while your own ideas are not? Is commerce all that really matters? Is it the only thing in life that is real? What does that say about our society’s respect for the individual’s mind? Does it matter what we really think, as long as we honor credit obligations, pay rent, and go to work for employers? Those who prevail in “real life” become wealthy and respected; society labels all others “failures.” To win in life, then, is to win in commerce. Does that mean, as I suggested in the title of this essay, that life is commerce?

No comments: