Yet another “progressive” argument for an unlimited Commerce Power doesn’t add up

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by Rob Natelson

As I’ve pointed out before in this column, there is a sort of cottage industry among “progressive” law professors that involves taking snatches of the Founding-Era record—or imagined snatches—to argue that the current overgrown federal government is really constitutional after all.

In past posts, I’ve reported on a misinterpretation of the Necessary and Proper Clause (Article I, Section 8, Clause 18) that was based on a failure to research the meaning of the Post Office Clause (I-8-7). I’ve also reported on misuse of an early sailors’ health care law to justify Obamacare.

Today’s entry is probably better known than either of those. It is based on a statute passed by Congress in July, 1790 entitled “An Act To Regulate Trade and Intercourse with the Indian Tribes.” One section of that statute provides for punishment of a white person who ventures into Indian country and commits a crime against an Indian. Some law professors argue that because this statute regulates “trade and intercourse,” it must have been passed under the Commerce Power. And because it punished garden-variety crimes against Indians in Indian country, the Founding-Era understanding of the Commerce Power must have been really broad.

As almost always happens with the spiderwebs these folks spin, this one crumbles at a touch. There are at least three things wrong with their argument. In ascending order of importance, they are as follows:

* The statute was enacted too late to be reliable evidence of original understanding, at least by itself. When it was enacted, all 13 states already had ratified. People could claim the Constitution meant almost anything. Also, in this (second) session of Congress the alliances had changed and the dynamics were rather different than two or three years earlier. (For a discussion of when evidence of original understanding is timely, see Chapter 2 of my book,The Original Constitution.

* The statute was passed pursuant to the Treaty Power, not the Commerce Power. A section of the law references Indian treaties explicitly, and in remarks by President Washington to the Senate, he urged Congress to adopt an Indian trade bill to carry out treaties adopted with southern tribes.

(On the previous two points, see my article The Original Understanding of the Indian Commerce Clause.)

* If you read the statute carefully and with knowledge of the law of the time, you find that the criminal law portion applies only within U.S. territories, not within states. At the time, state jurisdiction—including jurisdiction over Indians—was coterminous with state boundaries (SeeThe Original Understanding of the Indian Commerce Clause.) But tribal jurisdiction was recognized within portions of the federal terrritories. The Indian Trade and Intercourse Act imposed punishment only on people committing crimes against Indians that were NOT “within the Jurisdiction of any State, or within the Jurisdiction of [federal territories].” In other words, the law did not apply within states or within that portion of U.S. territories outside Indian country. It applied only where the crime was committed within a part of a U.S. territory where Congress had recognized tribal jurisdiction. (Below is a complete copy of the relevant section.) And within U.S. territories, the Constitution (IV-3-2) gives Congress complete authority without any need to resort to the Commerce Power or any other enumerated power.

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In short, the Indian Trade and Intercourse Act is simply irrelevant to the scope of the Commerce Power.

The relevant section is as follows:

AND BE IT FURTHER ENACTED, that if any Citizen or Inhabitant of the United States, or of either of the Territorial Districts of the United States, shall go into any town, settlement or territory belonging to any nation or tribe of Indians, and shall there commit any Crime upon, or trespass against, the person or property of any peaceable and friendly Indian or Indians, which, if committed within the Jurisdiction of any State, or within the Jurisdiction of either of the said Districts against a Citizen or white Inhabitant thereof, would be punishable by the laws of such State or District, such offender or offenders shall be subject to the same punishment, and shall be proceeded against in the same manner, as if the offence had been committed within the Jurisdiction of the State or District to which he or they may belong, against a Citizen or white inhabitant thereof.

In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution’s original meaning have been published or cited by many top law journals. (See www.umt.edu/law/faculty/natelson.htm.) Most recently, he co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution(Tenth Amendment Center). After a quarter of a century as Professor of Law at the University of Montana, he recently retired to work full time at Colorado’s Independence Institute.