Replies

Our Founders' rejection of an expansive role for the Federal government in regulating all private commerce was sadly lost in the fog of 20th century Progressive Constitutional revisionism. Even Alexander Hamilton, arguably the most aggressive of the Federalists, did not endorse the idea that Federal legislative power might extend indefinitely into purely private transactions unrelated to acts of trade or exchange. James Madison, for his part, subscribed to the same understanding.

In his University of Chicago Law Review study of the history of the Commerce Clause, Randy Barnett makes the case as follows:

In Madison's notes for the Constitutional Convention, the term "commerce" appears thirty-four times in the speeches of the delegates. Eight of these are unambiguous references to commerce with foreign nations which can only consist of trade. In every other instance, the terms "trade" or "exchange" could be substituted for the term "commerce" with the apparent meaning of the statement preserved. In no instance is the term "commerce" clearly used to refer to "any gainful activity" or anything broader than trade. One congressional power proposed by Madison, but not ultimately adopted, suggests that the delegates shared the limited meaning of "commerce" described in (Samuel) Johnson's dictionary. Madison proposed to grant Congress the power "to establish public institutions, rewards, and immunities for the promotion of agriculture, commerce, trades and manufactures," strongly suggesting that the members understood the term "commerce" to mean trade or exchange, distinct from the productive processes that made the things to be traded.
Nor was this a secret usage confined to the Convention. In several of his contributions to The Federalist Papers, ardent nationalist Alexander Hamilton repeatedly made clear the commonplace distinction between commerce or trade and production. In Federalist 11, he also explained the purpose of the Commerce Clause, a purpose entirely consistent with the prevailing "core" meaning of the term "commerce":
"An unrestrained intercourse between the States themselves will advance the trade of each by an interchange of their respective productions, not only for the supply of reciprocal wants at home, but for exportation to foreign markets. The veins of commerce in every part will be replenished and will acquire additional motion and vigor from a free circulation of the commodities of every part. Commercial enterprise will have much greater scope from the diversity in the productions of different States..."
In Federalist 12, he referred to the "rivalship," now silenced, "between agriculture and commerce," while in Federalist 17, he distinguished between the power to regulate such national matters as commerce and "the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation." In Federalist 21, Hamilton maintained that causes of the wealth of nations were of "an infinite variety," including "situation, soil, climate, the nature of the productions, the nature of the government, the genius of the citizens, the degree of information they possess, the state of commerce, of arts, of industry." In Federalist 35, he asked, "Will not the merchant understand and be disposed to cultivate, as far as may be proper, the interests of the mechanic and manufacturing arts to which his commerce is so nearly allied?"
In none of the sixty-three appearances of the term "commerce" in The Federalist Papers is it ever used to unambiguously refer to any activity beyond trade or exchange. At the time of the framing, then, for Hamilton, a proponent of broad national powers, the term "commerce" in the Constitution referred to trade or exchange, not to the production of items to be traded, and certainly not to all gainful activity. Even later, with the contentiousness of the Constitution's adoption behind him, Hamilton's usage did not change. As Secretary of the Treasury, Hamilton's official opinion to President Washington advocating a broad congressional power to incorporate a national bank repeatedly referred to Congress's power under the Commerce Clause as the power to regulate the "trade between the States."