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St. John's L. Rev.


In this article the author inquires into the meaning of the legal term "commerce" at the the time the Constitution was written, debated, and ratified. The article provides additional support for the conclusion that, for reasons of policy and politics, the founding generation inserted this conceptual and legal boundary into the Constitution and the clear inference from these findings collectively is that the Commerce Clause was designed to give Congress jurisdiction over the law merchant insofar as it pertained to interjurisdictional activities, which was the same jurisdiction that pre-Revolution American pamphleteers had conceded to Parliament.

Part I examines contending definitions of "commerce." Part II explores the effect of new Necessary and Proper Clause scholarship. Part III focuses on sources of eighteenth century legal meaning. Part IV answers the question of whether the legal meaning of "commerce" was different from the lay meaning. Part V examines the meaning of "commerce" in the founders' legal sources. Part VI explains why the author's findings should be no surprise. Finally, Part VII discusses why so many intelligent scholars have been confused as to the actual scope of the Commerce Clause.