Most federal criminal legislation is based on either the tax or commerce clauses, but competent historians of the Founding Era will find that these clauses do not authorize criminal legislation.
For the term "commerce" we can disaggregate the bundle of elements it might include and examine usage to determine which of the elements were included in original understanding:
- Tangible articles.
- Transfer of ownership.
- Transfer of location.
- Transfer of possession.
- Direct services, securities, money, publications, power, etc.
- Exchange for a valuable consideration.
- Primary production (farming, fishing, hunting, mining, etc.)
- Manufacturing.
- Transport services.
- Sale.
- Possession.
- Use.
- Disposal.
- Those engaged in the process.
- The practices of those engaged in the process.
- The impacts of the practices of those engaged in the process, such as "interference" in the practices conducted by others, or intermingling of the process with other kinds of process.
- A "stream" of such processes which might include non-qualifying objects.
My research of instances of use in what became the United States finds only that "commerce among the states" meant "transfer for a valuable consideration of ownership and possession of a tangible commodity from a vendor in one state to a customer in another."
The word "commerce" was almost never used in common parlance in the colonies or newly independent states. A search of newspapers, speeches, and letters of that time and place finds few instances of it. The word is originally French, and we have this from Emmerich de Vattel, in his Law of Nations (1758), Book I § 92:
... commerce consists in mutually buying and selling all sorts of commodities.
Vattel was well-known and often cited by the Founders.
In other words, interstate commerce would not, for example, include a sale from someone in Lower Michigan to someone in Upper Michigan that happened to be delivered via Illinois. I have also found as objects of such regulation, aggregation only up to the level of single shipments of multiple units, not some "stream" that might include non-qualifying objects.
As originally understood, interstate "commerce" did not include primary production, such as farming, hunting, fishing, or mining. It did not include services, securities, or communication. Nor did it include manufacturing, transport, retail sales, possession, use, or disposal of anything. It did not include anything that might have a "substantial effect" on commerce, or the operations of parties not directly related to the actual transfers of ownership and possession.
It also did not include all "traffic". There is an implied power to regulate traffic to the extent necessary to separate commercial traffic from noncommercial, such as to require that traffic move through ports of entry and be subject to inspection, but once noncommercial traffic is identified as such it is no longer constitutionally subject to regulation. However, carrying human passengers would not qualify as commercial traffic, even through it might be done for hire, because humans are not tangible commodities being traded — with the temporizing exception of slaves until the logical incompatibility of slavery with the language of the Constitution could be resolved.
The decision in Gibbons was correct, but the justification in the opinion was not. The authority for regulating coastal traffic rests on the Defense Clause, which implies the power to control entry onto the territory of the nation and the approaches to it. See my commentary at
Gibbons v. Ogden, 22 U.S. 1 (1824): Jon Roland.
Further, as originally understood, the power to "regulate" was not the power to prohibit, nor did it imply the power to impose criminal penalties for violations. While a "regulation" might be considered as the prohibition of some modalities of something, like packaging, labeling, handling, routing, or scheduling, it could not be prohibition of all modalities. There must always be some modalities that are permitted. The restriction must be reasonable, and must serve a public purpose, and not favor one segment of the market over another.
Further, I find no instances where "necessary and proper for carrying into Execution the foregoing Powers" meant "convenient for achieving any purpose for which the powers might be exercised". It was recognized that many delegations of powers would not be sufficient for many purposes for which they might be exercised, but the delegation was only to exercise the power within its bounds, not to do whatever it might take to accomplish a goal.
