How can one defend Constitutional integrity by endorsing the view of its enemies? How can one defend its meaning if ignorant of that meaning? The former is akin to an attorney telling the jury every word uttered by prosecutors with respect to his client’s guilt is true, but, find him not guilty anyway. The latter would be like a football team taking the field having spent zero time studying and learning their plays. Both are doomed to failure.

Chris Stigall is a conservative radio talk show host out in Kansas City, Missouri. The Pacific Legal Foundation, headquartered in Sacramento, California, is a conservative nonprofit defending American’s individual and property rights in Court against abuse by the federal government. I was able to pick up the Stigall Show on Monday 3 October 2022. He was interviewing an attorney for Pacific Legal about a pending case. During the discussion, she said, and Stigall agreed, under the Commerce Clause, the federal government has the authority to regulate anything that crosses state lines. Both are profoundly wrong. Prior to penning this refutation, I attempted to contact Stigall through several channels including his station manager, without success. That conservatives are ignorant of the Constitution to the point of endorsing interpretations counter to its meaning, is testament to public education’s success in teaching an imposter. The talk show host and attorney’s error possibly stem from a misapprehension with respect to America’s form of government, nature of delegated powers, state’s reserved powers, and meaning of the Commerce Clause.

America has a federal not national form of government. Although these terms are used interchangeably by teachers, they are, in fact, not at all the same. Under a national system, all power is consolidated in a central government and states comprise its regional subdivisions and have little or no autonomy. The central government makes all laws and applies them to states irrespective of local interests.¹ America has a federal system in which States created the general government and delegated to it finite powers. Its authority is limited to international relations, foreign trade, war, copyrights, and standardization of currency, weights and measures, and a postal system. States are not political subdivisions of the general government but retain independent authority within their boundaries.² They also have the right to take back powers they delegated to the federal government.³ States reserved all powers to themselves over domestic affairs. Federal and state power operate in separate autonomous spheres. Like trains, they run on parallel but separate tracks that do not intersect.⁴ States enumerated the federal government’s 18 powers in Article 1, Section 8. Any power not delegated is a power denied to the federal government. State’s exclusive authority over non-delegated powers is codified in the Tenth Amendment.⁵

The federal government may exercise only its enumerated powers and may not create implied from explicit ones. It may acquire new or expanded powers only through the amendment process. Only states may amend the Constitution. It cannot be amended by any branch of the federal government through interpretation. It may not make national laws as those operate on and within states which would violate the 10^th Amendment. How does this relate to the Commerce Clause?

The Clause reads;

“The Congress shall have Power: To regulate commerce with foreign Nations,

and among the several States, with the Indian Tribes” [capitalization in the

original].⁶

Through the Declaration of Independence (1776), Articles of Confederation (1781), and Treaty of Paris (1783), Britain’s 13 former North American colonies declared they were independent sovereign states (nations) and recognized as such by Great Britain and the world. Each possessed an autonomous government and constitution. To raise revenue and protect native industry and agriculture, states erected tariffs and tolls on goods crossing their borders, by land, sea, and river, from other states. They also disputed the boundaries of western lands won through the war.⁷ In addition, they made separate trade treaties with foreign powers without regard to whether or not it harmed the interests of other states.

For example, under its colonial charter, Maryland controlled the Potomac River right to Virginia’s shoreline. Both used this river to ship upstate and western goods to the coast. To gain access to the river, Virginia successfully negotiated a trade treaty with Maryland. James Madison and others believed similar arrangements might be expanded to include the other eleven states. This might unify them and lead to settlement of western land claims. They called for a Convention to meet in Annapolis, 1785. Some states sent delegates, some arrived too late, and others boycotted. Congress called for a second convention to meet in Philadelphia.⁸ They met from May through September, 1787, debating and working out a constitution to replace the Articles of Confederation. They faced many challenges. Chief among them were trade disputes.

If states created a trade system benefitting all and disadvantaging none, it would diffuse interstate conflicts and bolster their economic strength vis a vis Britain and Europe. A clause eliminating interstate barriers to trade and commerce was the solution. In time, this policy would transform the United States into the “largest area of free trade in the world”. The Commerce Clause would put an end to “mercantilistic systems” of trade.⁹

John Taylor, perhaps the most towering intellect of the Founding period, noted the power to regulate commerce states delegated to the federal government served two purposes, “to prevent foreign nations from obtaining unjust advantages over the United States” and “to prevent one state from making another tributary to itself”.¹⁰ However, and this is crucial, the Commerce Clause delegates to Congress power to regulate trade between the U.S. and three forms of “sovereign entities; the States, foreign nations, and the Indian Tribes”.¹¹ This refers to trade arrangements. It does not grant Congress power over commercial activities in or between states.¹² The Commerce Clause’s purpose is to create one voice with respect to foreign trade and to facilitate free trade between states. How is the latter accomplished? By eliminating interstate tariffs and tolls not to erect rules governing commercial activity within and or crossing state lines.

In Federalist 42, James Madison explained the Commerce Clause only delegated to the federal government authority over international trade but not over the commercial activities within states or crossing their borders.¹³ Under this clause, the federal government makes trade treaties with foreign nations. To argue it empowers a federal government to make national laws governing commercial activities within states is nonsensical. States created the federal government. Did they assign it the function of making trade treaties between it and individual states? Of course not, because states are not foreign nations and commercial activities fall under state’s reserved powers. For example, the federal government may make trade treaties with Indian tribes but it has no authority to make rules governing the manufacture and sale of goods by Indians or sold to non-Indians. It is crucial to keep in mind that commercial activities and trade are not the same.¹⁴

The federal government has no authority to make rules governing the manufacture and sale of goods, working conditions, wages, or rules for transportation by air, boat, train or truck, private or public, inter or intrastate. These are functions of state governments.¹⁵

Madison noted delegates to the federal convention used the term commerce 34 times during debate and discussion typically in reference to trade with foreign nations. They used the terms commerce and trade interchangeably. This was true for the 63 times authors of the Federalist Papers [Hamilton, Madison, and Jay] used the terms. No delegate to the federal and subsequent state ratifying conventions, used these terms to mean other than trade.¹⁶

In Federalist 45, Madison wrote;

“The powers delegated by the proposed Constitution to the federal government

are few and defined. Those which are to remain in the State governments are

numerous and indefinite. The former will be exercised principally on external

objects as war, peace, negotiation, and foreign commerce; with which last the

power of taxation will, for the most part, be connected. The powers reserved to

the several States will extend to all the objects which, in the ordinary course of

affairs concern the lives, liberties, and properties of the people, and the internal

order, improvement and prosperity of the State”.¹⁷

What about the word “regulate”? Does it not mean the federal government has authority to control commercial activity? Does not control necessarily imply authority to make rules governing such activities in states, especially if it crosses state lines?

Fortunately, we have a treasure trove of documents from the framers. They demonstrate the common usage of the word “regulate” with respect to the Commerce Clause did not mean authority to make rules governing commercial activity. On the contrary, it means “to keep moving” to make regular. The Clause’s purpose is to keep trade moving by, as noted, eliminating interstate tariffs and tolls. The federal government’s power is reactive. It may remove barriers to interstate trade but may make no rules governing commercial activity.

Article 1, section 9, clause 6 states;

“No preference shall be given by any Regulation of Commerce or Revenue, to the

ports of one State over those of another; nor shall Vessels to or from one State, be

obliged to enter, clear, or pay Duties in another [capitalization in the original].¹⁸

The Article is clear, Congress’s commerce power is to eliminate specific trade policies, employed by states, favoring their domestic industries and commercial activities at the expense of sister states.

Comparing the Constitution’s sections on commerce, with the dictionary extant at the time [1785 edition of Samuel Johnson’s Dictionary of the English Language], it is clear commerce is defined as trade not the manufacture and sale of goods or any other gainful activity. This includes all phases of agricultural production and trade between individuals.¹⁹ Hence, the federal government has zero authority to make national laws governing the economic activities of private individuals, companies, or states within or crossing state borders.

Vice President John C. Calhoun, regrettably binned by modernity over his views on slavery, was correct in observing regulation of commerce applies to relations between the United States and foreign nations. Congress cannot “regulate” commercial activities within or between states because such power belongs only to a national form of government and the United States is constituted a federal republic. Calhoun noted the only time the clause would empower the federal government in relations with states would be if one chose to erect tariffs on goods from other states.²⁰

University Professor of Law and Government, Randy E. Barnett, notes in every case when the Constitution’s framers used the word “commerce”, the “narrowest” construction is employed. The phrase “among the states” referred to trade between states and “regulate” meant “to make regular”. Again, Congress has no authority to make rules governing economic activity in any state whether it crosses state lines or not.²¹

Professor St. George Tucker, an officer in the Virginia Militia during the War of Independence, and later law professor, wrote the Constitution never authorized the federal government to regulate or interfere with domestic commerce in any way. The Commerce Clause was designed to protect domestic commercial activity from federal interference. States never delegated Congress authority to make rules for any form of economic activity among people, businesses, and states.²² Yet, today, Congress and the Court interpret “to regulate” opposite of its meaning. Justice Clarence Thomas observes the “original meaning” (indicating the current one is in error) of commerce “was limited to the ‘trade and exchange’ of goods and transportation for this purpose”. Courts today have turned this meaning on its head by applying it to “any gainful activity”.²³

A common understanding of the Commerce Clause remained consistent throughout the founding era. There is “not a single example from the reports of these proceedings [drafting and ratifying the Constitution] that unambiguously used the broad meaning of commerce, and many instances where the context makes clear that the speaker intended a narrow meaning”.²⁴

Professor Brion McClanahan writes, since Chief Justice John Marshall, who was a strong proponent of a national as opposed to federal system, used Gibbons v. Ogden (1824) to create for Congress a “right to regulate interstate commerce”.²⁵ Marshall had access to founding documents and even spoke in favor of ratification at the Virginia Convention. He knew the meaning and intent of the Commerce Clause. He knew Congress has no authority to regulate private or public economic activities inter or intrastate. But he, like Alexander Hamilton, supported abolishing state governments by consolidating all power in a national government. He ruled, Congress could intervene and make rules for commerce “within a single state” if it affected trade with or in another state.²⁶ In so doing, he overturned the Constitution. From Marbury v. Madison (1803) McCulloch v. Maryland (1819), Gibbons v. Ogden (1824) and subsequent cases, Marshall created from thin air, a new power for Congress rejected to it by the States and Constitution.

Marshall believed the framers meaning and intent for the Commerce Clause was “too narrow”. Congress should have the power to intervene in the economic affairs of state and people. He wrote, “The manner in which the Congress decides to regulate commerce is completely at the discretion of Congress”.²⁷ Of course, he did. Such power would go a long way toward transforming a federal into a national system and destroy state’s reserved powers. Subsequent Courts built precedent on Marshall’s invalid rulings.

For many years they were successfully opposed by Presidents and Governors but, with the passage of time, and for various reasons, Americans began to accept this rewriting of the Constitution and extralegal abolition of the 10^th Amendment. Federal Courts ruled Congress could now make laws governing all economic activities within and across state lines if such activities had a “substantial effect (determined by Congress and the Court), on other states. This is an open-ended grant of power because any “activity when taken in the aggregate, could be said to have a ‘substantial effect” on interstate trade. Marshall and subsequent courts eviscerated limits on Congress’s power.²⁸

States created a federal not national government. Through the Constitution, they delegated to it limited and defined powers. They include foreign relations, international trade, war, and standardization of currency, weights and measurements, copyrights, and a postal system. States did not surrender but reserved all other powers to themselves. No federal branch of government, legislative, executive, or judicial, was given the power of judicial review. None has the sole or final authority to interpret the Constitution’s meaning. That right belongs to the people. Consolidationists at the federal convention proposed granting this power to the federal court but delegates voted it down knowing full well States would never ratify the proposed constitution if it contained such a provision. Therefore, the Court has zero authority to rule on the constitutionality of any law, federal or state. The Commerce Clause was written to prohibit states from restricting the free flow of interstate goods through internal tariffs and tolls. Period. Congress has no authority to regulate the economic activities of people, businesses, private or public, within states or because they cross an imaginary line.

How can anyone defend what they know little or nothing about? This amounts to an inexcusable forfeiture on the battlefield. As one who taught government for more than two decades in the public high school system, I am well aware what they teach is an imposter in place of the real Constitution. This is no excuse for conservatives and those claiming to be originalists, to promote the same imposter. After all, I too was taught the false constitution. I took the time to find the real one and others should as well. You may be surprised to discover how far removed, the one taught in public schools, is from the Constitution ratified by the Thirteen States. Hint, no amendments were ever passed to change the intended, and now opposite, meaning of t