The Original Understanding of the Indian Commerce Clause: An Update*
By Robert G. Natelson**
Natelson, Robert G. “The Original Understanding of the Indian Commerce Clause: An Update.” Federalist Society Review 23 (8 2022): 209-237.
Table of Contents
I. RECENT AND PENDING LITIGATION ……………………………………………..211
II. PREVIOUS SCHOLARSHIP …………………………………………………………… 212
III. GOALS OF THIS ARTICLE ……………………………………………………………..213
IV. SOME PRINCIPLES OF ORIGINALIST ANALYSIS ……………………………214
V. THE CONSTITUTIONAL SCHEME : SEPARATION OF POWERS ……… 215
VI. THE MEANING OF THE INDIAN COMMERCE CLAUSE …………………218
A. Americans’ Focus on the Regulation of Commerce ……………………218
B. “Regulate Commerce” = “Regulate Trade” …………………………………219
C. “Regulate Commerce/Trade” = The Lex Mercatoria ……………………220
D. The Scope of the Lex Mercatoria ………………………………………………..221
VII. THE “PROTEAN COMMERCE CLAUSE ” HYPOTHESIS …………………..223
A. Textual Difficulties …………………………………………………………………….224
B. Evidentiary Weaknesses ……………………………………………………………225
* Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. To join the debate, please email us at [email protected]
** Professor of Law (ret.), The University of Montana; Senior Fellow in Constitutional Studies, the Independence Institute. Professor Natelson thanks Professor Andrew Morriss, Texas A&M
University School of Law, for his excellent suggestions, and Jeremy Sallee, Class of 2024, Liberty University School of Law, for his research assistance.
1 U.S. CONST. art. I, § 8, cl. 3 (italics added).
2. An Antifederalist Screed …………………………………………………………226
3. The Claim that the Regulation of Indian Commerce was Broader than the Regulation of
4. Edmund Randolph’s National Bank Opinion …………………………..229
5. Early Indian Intercourse Laws ………………………………………………… 231
IX. CONCLUSION : THE INDIAN CHILD WELFARE ACT ……………………….. 236 2
2 Bibliographic Footnote: This footnote lists secondary sources referenced multiple times in this article.
Albert S. Abel, The Commerce Clause in the Constitutional Convention and in Contemporary
Comment, 25 M INN. L. R EV. 432 (1941) [hereinafter Abel];
Gregory Ablavsky, Beyond the Indian Commerce Clause, 124 YALE L.J. 1012 (2015) [hereinafter Ablavsky];
FELIX COHEN, HANDBOOK OF FEDERAL INDIAN LAW (1942) [hereinafter COHEN];
TIMOTHY CUNNINGHAM , THE MERCHANT’S LAWYER: OR, THE LAW OF TRADE IN GEN-ERAL (2d ed. 1768) (2 vols.) [hereinafter CUNNINGHAM ];
SAMUEL FORSTER, A DIGEST OF ALL THE LAWS RELATING TO THE CUSTOMS, TO TRADE ,
AND NAVIGATION (1727) [hereinafter FORSTER];
GILES JACOB, LEX MERCATORIA: OR, THE MERCHANT’ S COMPANION (2d ed. 1729) [herein-
after JACOB];
THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION OF THE
UNITED STATES (John P. Kaminski et al. eds., 1976–2022) (36 volumes) [hereinafter DOCU-MENTARY HISTORY];
INDIAN TREATIES: 1778-1883 (Charles J. Kappler ed. 1972) [hereinafter KAPPLER];
GERARD MALYNES, CONSUETUDO, VEL, LEX MERCATORIA: OR, THE ANCIENT LAW –
MERCHANT (1686) [hereinafter MALYNES];
Robert G. Natelson, The Founders Interpret the Constitution: The Division of State and Federal Powers, 19 FEDERALIST SOC’ Y R EV. 60 (2018) [hereinafter Natelson, Founders];
—-, THE ORIGINAL CONSTITUTION: WHAT IT ACTUALLY SAID AND MEANT (3d ed. 2015)
[hereinafter NATELSON, TOC];
—-, The Founders’ Hermeneutic: The Real Original Understanding of Original Intent, 68 OHIO
S T. L.J. 1239 (2007) [hereinafter Natelson, Hermeneutic];
—-, The Original Understanding of the Indian Commerce Clause, 85 DENVER U. L. R EV. 201
(2007) [hereinafter Natelson, ICC];
—-, The Legal Meaning of “Commerce” in the Commerce Clause, 80 S T. JOHN’ S L. R EV. 789
(2006) [hereinafter Natelson, Commerce];
—-, The Enumerated Powers of States, 3 N EV. L.J. 469 (2003) [hereinafter Natelson, Enumerated];
Saikrishna Prakash, Our Three Commerce Clauses and the Presumption of Intrasentence Uniformity, 55 ARK.L.REV. 1149 (2003) [hereinafter Prakash];
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I. RECENT AND PENDING LITIGATION
Since 2019, the Supreme Court has issued four major decisions on Indian tribal sovereignty law issues. Perhaps this is a belated response to Justice Clarence Thomas’s call for clarifying a body of jurisprudence long plagued by doctrinal confusion.3That confusion may be the reason for the fractured votes in all four recent cases: Three were decided by 5-4 margins, and one on a vote of 3-2-4.4
The Court has agreed to consider four more cases, now consolidated, in the October 2022 term.5They test the constitutionality of the federal Indian Child Welfare Act of 1978 (ICWA).6This statute purports to govern the removal and out-of-home placement of American Indian children, to override state jurisdiction, and to dictate procedures to state courts.7
There is fierce controversy among child advocates over the merits of the ICWA.8The pending cases, however, all focus on constitutional issues
THE RECORDS OF THE FEDERAL CONVENTION of 1787 (Max Farrand ed. 1911) [hereinafter FARRAND];
Adrian Vermeule, Three Commerce Clauses? No Problem, 55 ARK. L. REV. 1175 (2003) [herein-after Vermeule].
3 United States v. Lara, 541 U.S. 193, 214-22 (2004) (Thomas, J., concurring).
4 Oklahoma v. Castro-Huerta, 142 S. Ct. 2486 (2022) (5-4) (recognizing state jurisdiction over crimes committed by non-Indians in Indian country); McGirt v. Oklahoma, 140 S. Ct. 2452 (2020) (5-4) (holding that Congress never dissolved a particular Indian reservation); Herrera v. Wyoming, 139 S. Ct. 1686 (2019) (5-4) (holding that admission of a state to the union did not abrogate an Indian treaty unless Congress clearly so stated, and construing the terms of the treaty);Washington State Dep’t of Licensing v. Cougar Den, Inc., 139 S. Ct. 1000 (2019) (decided 3-2-4) (holding that the terms of a federal treaty with an Indian tribe preempt state law).
5 Brackeen v. Haaland, SCOTUS BLOG, https://www.scotusblog.com/case-files/cases/brackeen-v-haaland/.
6 25 U.S.C. §§ 1901 – 1963.
7 E.g., 25 U.S.C. § 1911(a) (“An Indian tribe shall have jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law.”); id. § 1911(c) (“In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child’s tribe shall have a right to intervene at any point in the proceeding.”).
8 For a generally positive view, see, e.g., Gabby Deutch,A Court Battle Over a Dallas Toddler Could Decide the Future of Native American Law, THE ATLANTIC, Feb. 21, 2019,
https://www.theatlantic.com/family/archive/2019/02/indian-child-welfare-acts-uncertain-future/582628/; for a negative view, see, e.g., Lisa Morris, The Indian Child Welfare Act: An Unconstitutional Attack on Freedom, Christian Alliance for Indian Child Welfare, https://caicw.org/2022/03/08/the-indian-child-welfare-act-an-unconstitutional-attack-on-freedom/
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In one of the ICWA’s recitals, Congress identifies the Indian Commerce Clause10as its principal constitutional justification.11The ICWA further recites that the Indian Commerce Clause and unspecified “other constitutional authority grants Congress plenary power over all Indian affairs.”12
For reasons explained in this article, this recital is erroneous: The Constitution did not give Congress authority to enact the Indian Child Welfare Act.
II. PREVIOUS SCHOLARSHIP
Struck by the incoherence of the law in this area, in early 2007 I decided that the first step toward clearing the tangle might be to ascertain what the Indian Commerce Clause really means. Accordingly, I researched and wrote The Original Understanding of the Indian Commerce Clause.13I learned that one reason the law of governmental-tribal relations was so chaotic was that there had been little worthwhile scholarship on the original meaning of the Indian Commerce Clause. The relatively few publications that addressed the issue usually (1) displayed little awareness of originalist sources or methodology, or of the wider context of the Constitution’s adoption, and (2) were strongly agenda-driven.14
Felix S. Cohen’s Handbook of Federal Indian Law may serve as an example. This work often is treated as the ultimate authority on Indian law. Yet Cohen was not a seasoned constitutional scholar, nor was he objective or independent. He was a political appointee in the administration of Presi-
9 Sosna v. Iowa, 419 U.S. 393, 404 (1975). During the debates over the Constitution’s ratification, advocates for the Constitution specifically represented that family law would remain a state concern. Natelson, Enumerated, supra note 2, at 483.
10 U.S. CONST. art. I, § 8, cl. 3 (“The Congress shall have Power . . . to regulate Commerce . . .with the Indian Tribes.”).
11 25 U.S.C. § 1901.
12 Id.
13 Natelson, ICC, supra note 2. Like my other investigations into constitutional meaning, I tried to keep this one as objective as possible.
14 Id. at 212-13 (providing examples of agenda-driven writings).
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Concluding that I could not rely on existing literature, I turned directly to Founding-era sources. Those sources compelled the conclusion that Congress’s powers under the Indian Commerce Clause were not plenary. Rather, like Congress’s powers under the Foreign and Interstate Commerce Clauses, they were limited to regulating certain economic activities. My resulting article created a stir. Justice Thomas cited it several times,16it prompted at least one academic response, and it may have provoked several challenges to the constitutionality of the ICWA.
III. GOALS OF THIS ARTICLE
Parts I-IV of this article are introductory in nature. Part V explains—I think more clearly than my previous study—the Constitution’s “separation of powers” approach to Indian affairs. Part VI provides additional evidence of the Founding-era meaning of the phrase “Commerce . . . with the Indian Tribes.” Part VII addresses some commentators’ contention that the word “Commerce” has a more inclusive meaning in the Indian Commerce Clause than in the Foreign and Interstate Commerce Clauses, even though that word is used only once with respect to all three forms of commerce. Part VIII is a response to Professor Gregory Ablavsky and his admittedly “heterodox”17approach to interpreting the federal government’s Indian affairs powers. Part IX concludes that the child placement provisions of the ICWA are indeed outside the scope of Congress’s authority.
15 Id. at 203-12 (collecting and analyzing rationalizations for plenary authority).
16 Adoptive Couple v. Baby Girl, 570 U.S. 637, 658-59, & passim (2013) (Thomas, J., concurring); Upstate Citizens for Equality v. United States, 140 S. Ct. 2587, 2588 (2017) (Thomas, J., dissenting from denial of certiorari).
17 Ablavsky, supra note 2, at 1017 (“To determine the original constitutional Indian affairs power, this Article employs an alternate approach to reconstruct constitutional meaning. This approach uses heterodox methodologies and inclusive conceptions of constitutional actors and sources . . . .”).
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As noted earlier, much writing on the federal Indian powers appears to be agenda-driven,18and the flames of advocacy often consume appropriate methodology. Before examining the original meaning of constitutional terms, therefore, it may be helpful to review some aspects of originalist analysis.
First, the Constitution is a legal document—“the supreme Law of the Land.”19Its framers drafted it, and its advocates explained it, with standard Anglo-American methods of documentary interpretation in mind. By way of illustration, both Alexander Hamilton’s and James Madison’s writings in The Federalist refer repeatedly to standard rules of documentary construction.20Adhering to those rules is necessary to preserve the integrity of the document. If judges and public officials can craft and apply unanticipated interpretive methods to the Constitution—thereby effectively changing its meaning—then they, and not the Constitution, are the “supreme Law of the Land.”
Second, although some have claimed that originalism is a new creed, in fact it antedates the Constitution itself.21Well before the 18th century, the lodestar of most documentary interpretation had become the “intent of the makers.”22When applied to the Constitution, the “intent of the makers” was the understanding of the ratifiers.23In default of a clear and consistent
18 Supra note 14 and accompanying text.
19 U.S. CONST. art. VI, cl. 2.
20 E.g., THE FEDERALIST NO. 32 (Hamilton) (using the interpretative technique of the negative pregnant); THE FEDERALIST No. 41 (Madison) (using the presumption against superfluities). See generally Natelson, Hermeneutic, supra note 2 (explaining techniques of 18th-century documentary interpretation).
21 Natelson, Hermeneutic, supra note 2 (tracing originalist methods of interpretation in English law to well before the Founding). Actually, originalist methods can be traced back even further. E.g., Polybius, Histories 12.16.9 (reporting a defense that an interpretation was faulty because it was not the intent of the lawgiver).
22 Natelson, Hermeneutic, supra note 2, at 1249-55.
23 Id. For a defense of this approach, see Jack N. Rakove, Joe the Ploughman Reads the Constitution, or, The Poverty of Public Meaning Originalism, 48 SAN DIEGO L. REV. 575 (2011). Chief Justice John Marshall’s frequently misunderstood comment that “We must never forget that this is a constitution we are expounding” does not contradict originalist method. Marshall made the statement only to explain why the Designatio unius (today we would say Expressio unius) maxim had diminished force for determining the makers’ intent. McCulloch v. Maryland, 17 U.S. 316, 406-07 (1819) (referring to “The men who drew and adopted” the Tenth Amendment). Marshall certainly didn’t reject the maxim, even in the constitutional context. See Marbury v. Madison, 5 U.S. 137 (1803) (holding that Congress’s grant to the Supreme Court of certain original jurisdiction exceeded its enumerated powers).
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Finally, a caveat about evidence of original understanding: The American people adopted the Constitution when it was ratified by state conventions elected for the purpose. The understanding of the ratifiers and of the wider public was informed by statements, events, and conditions previous to and contemporaneous with those conventions. It could not have been influenced by statements, events, or conditions that had not yet arisen. For this reason, post-ratification statements, events, or conditions generally are very weak—if any—evidence of the original understanding. Admittedly, there are rare exceptions to this rule.25But those exceptions certainly do not include statements and actions by self-interested politicians made after the ratification was complete. In nearly all cases, the originalist’s best response to such so-called evidence is to ignore it.26
V. THE CONSTITUTIONAL SCHEME : SEPARATION OF POWERS
In 1789, the United States transitioned from the Articles of Confederation to the new federal Constitution. Like the Articles, the Constitution granted only enumerated powers to the central government and reserved the remainder in the states.27In general, the extent of powers granted by the Constitution was greater than under the Articles. Unlike the Articles, however, the Constitution did not bestow those powers on a single entity, such as Congress. Rather, the Constitution divided them among different federal actors, thereby creating countervailing checks and balances.28
The treatment of relationships with the Indians followed this pattern. The Articles bestowed on the Confederation Congress the power of “regu-
24 Natelson, Hermeneutic, supra note 2, at 1286.
26 The Supreme Court recently disclaimed the misuse of post-ratification “evidence.” New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2162-63 (2022) (Barrett, J., concurring):
27 ARTS. CONFED., art. II; U.S. CONST. amend. X.
28 E.g., U.S. CONST. art. I, § 8, cl. 11 (granting Congress power to declare war), but id. art. II, § 2, cl. 2 (granting the President and Senate power to make treaties, including treaties of peace).
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At the Constitutional Convention, James Madison suggested granting to the new federal Congress an unlimited “power to regulate affairs with the Indians.”33However, the Convention rejected this suggestion. The finished Constitution did give federal officers and entities more authority over Indian relations than the Confederation Congress had enjoyed, but unlike the Articles, the Constitution divided that authority:
• The President, with the approval of two-thirds of the Senate, could
enter treaties with the tribes.35This may have been the most
important Indian affairs power, because treaties were the usual way of
resolving disputes between European Americans and Native
Americans. Treaties could cover almost any subject,36including
subjects other than those normally within the purview of the federal
government.37
29 ARTS. CONFED., art. IX.
30 Natelson, ICC, supra note 2, at 217-18 (providing examples of the meaning of Indian “affairs” See also “Federal Farmer.” Letter No. 1, Oct. 8, 1787, in 19 DOCUMENTARY HISTORY, supra note 2, at 207, 213 (listing “commerce” and “affairs” separately).
31 ARTS. CONFED., art. IX.
32 Natelson, ICC, supra note 2, at 227-30.
33 2 FARRAND, supra note 2, at 324 (Aug. 18, 1787) (Madison).
34 NATELSON, TOC, supra note 2, at 151, 159, & 166 (explaining that the President’s diplomatic and warmaking powers derive partly from their explicit enumeration and partly from the then-recognized incidents of the explicitly enumerated powers).
35 U.S. CONST. art. II, § 2, cl. 2.
36 Including the highly significant subject of land. Paine Wingate to Samuel Lane, Jun. 2, 1788, in 28 DOCUMENTARY HISTORY, supra note 2, at 317, 318 (discussing potential land allocations by Indian treaties).
37 See generally, KAPPLER, supra note 2, at 3-54 (reproducing treaties between Indian tribes and the United States from 1778 through 1798).
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many tribes), (2) declare war,39(3) “define and punish . . . Offenses
against the Law of Nations,”40(4) adopt legislation to execute
treaties41under the Necessary and Proper Clause,42and (5) regulate
“Commerce . . . with the Indian Tribes.”43
• The states reserved police power over Indians within their boundaries
on matters not duly preempted. The Constitution made this clear by
dropping the Articles’ word “all” from its grants of federal power over
Indian affairs,44and it confirmed the reservation by the Ninth and
Tenth Amendments. State exercise of police power over Natives was
and remains controversial, but the states had exercised it before the
Constitution and, despite occasional complaints from federal officials,
continued to do so afterward.45
39 Id. art. I, § 8, cl. 11.
40 Id. art. I, § 8, cl. 10. During the Founding era, “the law of nations” was the usual term for international law.
41 It has been argued that the Necessary and Proper Clause recognizes only congressional power to facilitate the making of treaties and not their execution, but this is an error. Treaties are the “supreme Law of the Land,” the President must “take Care” to enforce them, and the Necessary and Proper Clause empowers Congress to enact legislation to assist him in that function. NATELSON, TOC, supra note 2, at 164-65.
42 U.S. CONST. art. I, § 8, cl. 18.
43 Id. art. I, § 8, cl. 2.
44 Professor Ablavsky writes that the Constitution avoided the terms “sole” and “exclusive” for all its enumerated powers, “opting instead for broad federal authority through the Supremacy Clause.” Ablavsky, supra note 2, at 1035. But see U.S. CONST. art. I, § 8, cl. 17 (“To exercise exclusive Legislation in all Cases whatsoever”); id. art. I, § 2, cl. 5 (“sole power of impeachment”); id. art. I, § 3, cl. 6 (“sole Power to try all Impeachments”); see also id. art. I, § 9, cl. 1 (assuring exclusive congressional or federal jurisdiction by denying states certain concurrent powers).
45 Natelson, ICC, supra note 2, at 222-23. Cf. Matthew L. M. Fletcher, Indian Tribes and Statehood: A Symposium in Recognition of Oklahoma’s Centennial, 43 TULSA L. REV. 73 (2007) (arguing for a retreat from the position that states’ powers have no role in Indian affairs); CastroHuerta, 142 S. Ct. 2486 (recognizing state jurisdiction over crimes committed by non-Indians in Indian country).
46 Natelson, ICC, supra note 2, at 209.
Yet advocates for congressional power over Indian affairs press their case as if these changes had not occurred. They commonly assert that the Indian Commerce Clause, although constitutionally but one component of the federal Indian affairs power, now grants all of it: that Congress, acting alone, may exercise all the authority the Constitution vests explicitly in other entities.48 This claim is explored below.49
VI. THE MEANING OF THE INDIAN COMMERCE CLAUSE
A. Americans’ Focus on the Regulation of Commerce
Regulation of commerce was a topic with which Americans of the Founding generation were very familiar. Until 1776, they had been subjects of the greatest commercial polity in the history of the world. The British government supervised commerce with foreign nations and among all of the (mostly self-governing) units of the Empire. For several years, the British government tried to regulate trade with Indians as well, before resigning that function to the individual colonies.50
From 1763 to 1775, pamphleteers expounding the colonial cause publicized the distinction between centrally-imposed commercial regulations (which the pamphleteers found acceptable) and centrally-imposed taxes and internal governance (which they did not).51 The First Continental Congress adopted the same distinction.52 After Independence, Americans deliberated about whether to amend the Articles of Confederation to grant Congress
47 25 U.S.C.A. § 71:
acknowledged or recognized as an independent nation, tribe, or power with
whom the United States may contract by treaty; but no obligation of any treaty
lawfully made and ratified with any such Indian nation or tribe prior to March 3,
1871, shall be hereby invalidated or impaired.
48 E.g., Vermeule, supra note 2, at 1177 (reporting the claim that the Treaty Power expands the scope of, or works in tandem with, the Indian Commerce Clause); COHEN, supra note 2, at 91 (also coupling them).
49 Infra Part VII.
50 Natelson, ICC, supra note 2, at 219.
51 Natelson, Commerce, supra note 2, at 836-38.
52 E.g., 1 J. CONT. CONG. 82-90 (Oct. 21, 1774) (stating, in a letter “To the People of Great-Britain,” that the colonists accepted British regulation of trade/commerce while rejecting parliamentary taxation)
B. “Regulate Commerce” = “Regulate Trade”
In the 18th century, the word “commerce” could have different meanings. But as comprehensive usage surveys demonstrate, it usually was interchangeable with the word “trade.”55 This was particularly so when the context was government regulation of commerce.56 The phrase “regulate commerce” was almost always interchangeable with the phrase “regulate trade.”
The following extract from Madison’s Federalist No. 42 illustrates this interchangeability:57
The defect of power in the existing Confederacy to regulate the commerce
between its several members, is in the number of those which have been
clearly pointed out by experience . . . . [W]ithout this supplemental
provision, the great and essential power of regulating foreign commerce
would have been incompleat [sic] and ineffectual . . . . Were [the states] at
liberty to regulate the trade between State and State, it must be foreseen
that ways would be found out, to load the articles of import and export,
during the passage through their jurisdiction, with duties. . . [I]t would
stimulate the injured party, by resentment as well as interest, to resort to
less convenient channels for their foreign trade . . . . The necessity of a
superintending authority over the reciprocal trade of confederated States has
been illustrated by other examples as well as our own . . . . The regulation
of commerce with the Indian tribes is very properly unfettered from two
limitations in the articles of confederation . . . And how the trade with
53 E.g., 31 id. 494-95 (Aug. 7, 1786) (committee proposal for an amendment permitting Congress to “regulat[e] the trade of the States as well with foreign Nations as with each other”). Of course, Congress already had authority to regulate trade with the Natives under its Indian affairs power.
54 E.g., A Native of Virginia, Observations Upon the Proposed Plan of Federal Government, Apr. 2, 1788, in 9 DOCUMENTARY HISTORY, supra note 2, at 655, 670 (discussing details of the commerce power).
55 See generally Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 CHI. L. REV. 101 (2001); Randy E. Barnett, New Evidence of the Original Meaning of the Commerce Clause, 55 ARK. L. REV. 847 (2003).
56 Natelson, Commerce, supra note 2.
57 Another illustration appears in the Constitution itself: the Port Preference Clause, U.S. CONST. art. I, § 9, cl. 6. Infra note 97 and accompanying text.
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Indians, though not members of a State, yet residing within its legislative
jurisdiction, can be regulated by an external authority, without so far
intruding on the internal rights of legislation, is absolutely
incomprehensible.58
C. “Regulate Commerce/Trade” = Lex Mercatoria
Like many of the Constitution’s expressions,59 the phrase “regulate Commerce” derives from contemporaneous Anglo-American law. The regulation of inter-jurisdictional trade/commerce was a recognized jurisprudential category—much as naturalization law and real estate law were recognized jurisprudential categories.
William Blackstone’s Commentaries treated inter-jurisdictional commerce as such. He distinguished it from the regulation of domestic commerce (i.e., commerce within England) and identified inter-jurisdictional commerce with the distinct body of law known as the lex mercatoria or law merchant.60
With some modifications, the Constitution adopted the same distinction. To the state governments, it left supervision of domestic (intrastate) commerce. To Congress, it assigned governance of inter-jurisdictional commerce—that is, the lex mercatoria.
The Constitution made only two modifications on the traditional scheme. Both appear immediately after the Commerce Clause.61 The first was a grant to Congress of a distinct power to adopt uniform bankruptcy laws.62 Bankruptcy traditionally had been a component of the law merchant,63 so this additional power would not have been necessary for Congress to regulate bankruptcy in inter-jurisdictional transactions. However,
58 Publius, The Federalist No. 42, N.Y. PACKET, Jan. 22, 1788, in 15 DOCUMENTARY HISTORY, supra note 2, at 427, 429-31 (italics added).
59 NATELSON, TOC, supra note 2, at xxii.
60 1 WILLIAM BLACKSTONE , COMMENTARIES *263-64 (“[T]he affairs of [that] commerce are regulated by a law of their own, called the law merchant or lex mercatoria, which all nations agree in and take notice of.”).
61 U.S. CONST. art. I, § 8, cl 3.
62 Id. art. I, § 8, cl. 4.
63 1 CUNNINGHAM , supra note 2, at v-xxx (listing numerous subtopics of bankruptcy in the index); JACOB, supra note 2, at 385 (providing for bankruptcy commissioners). Jacob’s work, like Blackstone’s Commentaries, was deemed sufficiently important to be included on the list of books recommended for acquisition by the Confederation Congress. The recommendation was contained in a report by a committee consisting of James Madison, Thomas Mifflin, and Hugh Williamson—all later among the Constitution’s framers. 24 J. CONT. CONG. 84 & 89 (Jan. 24, 1783).
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the additional grant ensured that any federal bankruptcy laws would have intrastate as well as interstate effect. The second modification was a grant to Congress of power over weights, measures, and money.64 In England, regulation of weights, measures, and money were components of domestic (i.e., intrastate) commerce.65 As in the case of bankruptcy, this additional power would enable Congress to regulate throughout the entire country and not merely in inter-jurisdictional transactions.
Aside from those modifications, the content of congressional jurisdiction over commerce was defined by the accepted scope of the lex mercatoria.66
D. The Scope of the Lex Mercatoria
The fact that the expressions “regulate commerce” and “regulate trade” were virtually synonymous has led some commentators to assume that the scope of commercial regulation was very narrow—in foreign trade, perhaps limited to custom-house regulations,67 and in interstate trade, to eliminating barriers so as “to make commerce regular.”68
These assumptions do not comport with the broad scope of the lex mercatoria, as revealed by 18th-century statutes and treatises devoted to the subject.69 Although these sources give no comfort to those who contend that Congress’s Commerce Power extends to all forms of intercourse or to all economic matters, they make clear that the lex mercatoria was far more extensive than custom-house regulations or removing trade obstructions. It encompassed:
• the law of bankruptcy,70
64 U.S. CONST. art. I, § 8, cl. 5.
65 1 WILLIAM B LACKSTONE , COMMENTARIES *264.
66 Natelson, Commerce, supra note 2, at 813-15, 818-19, & 846.
67 E.g., Ablavsky, supra note 2, at 1027 (referring to “the customs-focused understandings of the Interstate and Foreign Commerce Clauses”).
68 John McGinnis, in Colloquium, Resolved: The Constitution is Designed for a Moral and Religious People and It is Wholly Unsuited for the Government of Any Other, 49 CONN. L. REV. 995, 1005 (2017); Randy E. Barnett & Andrew Koppelman, The Commerce Clause, National Constitution Center, https://constitutioncenter.org/interactive-constitution/interpretation/article-i/clauses/752.
69 Available treatises include MALYNES, supra note 2; JACOB, supra note 2; WYNDHAM BEAWES, LEX MERCATORIA REDIVIVA: OR, THE MERCHANT’S DIRECTORY (3d ed. 1771); CUNNINGHAM , supra note 2; & FORSTER, supra note 2. Other works also included aspects of the lex mercatoria in their discussions. E.g., JOHN REEVES, A HISTORY OF THE LAW OF SHIPPING AND NAVIGATION (1792).
70 1 CUNNINGHAM , supra note 2, at v-xxx (listing subtopics of bankruptcy); JACOB, supra note 2, at 385-86 (providing for bankruptcy commissioners).
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• regulation and licensing of merchants,71 brokers (factors),72 and oth-
ers involved in trade,73 including requirements of oaths,74 bonds,75
and recordkeeping;76
• the regulation of commercial paper—notes, drafts, and the like;77
• price controls;78
• all aspects of ships and navigation,79
• prohibitions on certain forms of trade and of activities associated with
trade,80 including territorial restrictions, both outside81 and within82
the legislature’s jurisdiction;
• regulations of inventory, such as packing and shipping,83 marking and
71 JACOB, supra note 2, at 157 (no alien may be an overseas merchant).
72 Id. at 152-157 (general regulation of factors, including restrictions in overseas possessions) & 387 (licensing of brokers and penalty for practice without a license).
73 Id. at 134-35 (licensing of “carmen”), 218 (referring to licenses of captains and capers), & 65-66 (regulation of pilots); 13 Geo. iii, c. 63 (1773) (extensive regulation of the East India Company).
74 JACOB, supra note 2, at 387 (oaths of brokers) & 286 (oaths of traders); FORSTER, supra note 2, at 171 (oaths of regulatory employees).
75 JACOB, supra note 2, at 218 (captains and capers required to post bonds), 387 (brokers required to post bonds), & 160 (bond required to take on board certain inventory).
76 Id. at 286 (entering license on certain books); 13 Geo. iii, c. 63, § XX (1773) (transferring and maintaining records).
77 JACOB, supra note 2, at 101 (regulations of promissory notes) & 94-100 (regulations of bills of exchange); 2 CUNNINGHAM , supra note 2, at i-v (index listing bills of exchange topics); id. at v-vi (index listing promissory note topics), vii (index listing other notes), & vii-viii (index listing marine insurance)
78 JACOB, supra note 2, at 134-35 (controls on prices of porters and carmen).
79 Id. at 57-58 (general navigation rules), 131 (times of unlading), 132 (license required to unlade), & 185 (prizes); FORSTER, supra note 2, at 173 (extra fee for non-conforming ships).
80 JACOB, supra note 2, at 32-33 (restrictions on wine imports), 37 (protection against fraud), & 163 (altering mark for purposes of fraud); 20 Geo. iii, c. 42 (1780) (comprehensive regulation and duties on trade with the Isle of Man, which was located within the empire).
81 E.g., FORSTER, supra note 2, at 265-66 (“And ’tis made a high Crime and misdemeanor to go to the East-Indies, the Party not being qualify’d by Law so to do; and the Offender shall be liable to corporal Punishment, or a Fine, as the Court shall think fit.”); JACOB, supra note 2, at 261 (barring subjects from trading in or traveling to Asia, Africa, or America without license) & 160 (restrictions on alien landownership abroad).
82 15 Geo. iii, c. 10 & c. 18 (1775) (restricting trade within the British Empire); 20 Geo. iii, c. 6 (1780) (lifting prior restraints pertaining to Ireland, then part of the British Empire); 20 Geo. iii, c. 18 (1780) (repealing earlier restrains on flow of money and traffic in hops with Ireland); id. c. 42 (1780) (comprehensive regulation and duties on trade with the Isle of Man, located within the empire).
83 10 Geo. iii, c. 17 (regulating the packing and shipping of China earthenware for export from Britain to America).
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labeling84—and flat prohibitions on inter-jurisdictional trading of certain goods (contraband);85
• financial charges, including but not limited to customs and duties;86
• administration of commercial treaties;87
• marine insurance;88
• incorporation of trading entities;89
• certain criminal measures, such as penalties for piracy90 and unau-
thorized mercantile activities;91 and
• the appointment of commissioners (agents) to administer the sys-
tem.92
As explained below, these categories are sufficient to comprehend the Founding-era understanding of “Commerce . . . with the Indian tribes.”93
VII. THE PROTEAN COMMERCE CLAUSE HYPOTHESIS
In any scheme of commercial regulation, the precise mix of rules and their respective prominence differ according to the items traded and with whom they are traded. The rules of the Jamaican trade are never precisely the same as those of the French trade. Such variations are normal, and we do not understand them as affecting the scope of regulatory power granted.
However, some writers contend that the single constitutional phrase…
84 MALYNES, supra note 2, at 142 (requirement of marking or labeling).
85 JACOB, supra note 2, at 27 (adulterating wine prohibited) & 229-30 (permitted and contraband goods); FORSTER, supra note 2, at 109-10 (bans on export of some goods outside British Empire); 25 Geo iii, c. 67 (barring export of tools from Britain, even to other units of the empire, Ireland excepted).
86 FORSTER, supra note 2, at 193-354 (listing duties on goods); JACOB, supra note 2, at 117-24 (schedule of duties), 265 (percentage duties), & 282 (license fees). For the scope of terms such as “custom” and “duty,” see Robert G. Natelson, What the Constitution Means by “Duties, Imposts, and Excises”—and Taxes (Direct or Otherwise), 66 CASE WESTERN R ES. L. REV. 297 (2015).
87 JACOB, supra note 2, at 203-255 (reproducing commercial treaties).
88 Id. at 84-92 (regulation of marine insurance).
89 Id. at 256-98 (listing trading companies incorporated by Crown).
90 Id. at 186-93 (piracy).
91 FORSTER, supra note 2, at 121-90 (listing penalties for violations).
92 JACOB, supra note 2, at 85 (commissioners of insurance), 285 (commissioners of the customs), & 385 (bankruptcy commissioners).
93 Infra Part VII(B)(3).
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“regulate Commerce” changes scope according to the persons or entities with whom the commerce is carried out. More specifically, they argue that “to regulate Commerce” takes on a far broader definition when modified by the phrase “with the Indian Tribes” than when modified by “with foreign Nations” or “among the several States.” Thus, although they might concede that the Interstate Commerce Clause does not authorize Congress to prescribe family law for non-Natives, they maintain that the Indian Commerce Clause empowers Congress to prescribe family law for Natives.
This argument is popular,94 but weak. It has two kinds of flaws: (1) it is textually improbable and (2) the evidence advanced to support it is defective.
A. Textual Difficulties
When the same term appears in different parts of the same legal document, we presume that the term means the same thing in all its appearances. This was the presumption during the Founding era,95 just as it is today.96 It reflects the observation that drafters of legal documents generally do not alter the meaning of terms within the same instrument. This is especially true of drafters as competent as the Constitution’s framers.
Promoters of the protean Commerce Clause hypothesis almost universally overlook the fact that the Commerce Clause is not the Constitution’s only reference to regulating commerce. The Port Preference Clause 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 bound to,
94 E.g. Abel, supra note 2, at 437; Ablavsky, supra note 2, at 1026. The theory seems to have been adopted in Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192 (1989), although Seminole Tribe of Florida v. Florida, 517 U.S. 44, 62 (1996) avoided specifically endorsing it. Compare Vermeule, supra note 2:
“Commerce,” when used next to the words “with foreign Nations” or “with the
Indian Tribes,” might have had a different meaning in the founding era than
“commerce” when used next to the phrase “among the several States.” . . . I have
no idea whether any of these possibilities are true.
Id. at 1181-82.
One must distinguish this contention from the (more plausible) position that the three different prepositional phrases following the word “Commerce” designate different people or entities with whom it is carried out. Christopher R. Green, Tribes, Nations, States: Our Three Commerce Powers (Aug. 22, 2020, rev’d Aug. 1, 2022), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3679265.
95 Natelson, ICC, supra note 2, at 215.
96 See Prakash, supra note 2 (discussing the rule and some applications).
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or from, one State, be obliged to enter, clear, or pay Duties in another.97
The references to “Ports,” “Vessels,” and “Duties” communicate a mercantile sense for the word “Commerce.” This, in turn, triggers the presumption that the word’s appearance in the Commerce Clause also is mercantile and does not encompass non-mercantile subjects such as family law.
When a clause contains a single appearance of a word or phrase (as the Commerce Clause does with the word “Commerce”), the presumption that the meaning remains constant should be even stronger. The framers could have written, “The Congress shall have Power to regulate Commerce with foreign Nations and among the several States and also to regulate Affairs with the Indian Tribes.” But they did not. And if “Commerce” really did have a different meaning in the Indian setting, they could have written, “The Congress shall have Power to regulate Commerce with foreign Nations and among the several States and to regulate Commerce with the Indian Tribes.” But they didn’t do that either. Instead, they employed exactly the same appearance of the same phrase (“regulate Commerce”) to refer to all three groups.
B. Evidentiary Weaknesses
Five kinds of evidence are proffered to rebut the presumption that the meaning of “regulate Commerce” remains constant with respect to all three listed commercial partners:
• evidence that the framers inserted the phrase “with the Indian Tribes”
in the Commerce Clause later in the drafting process than “with for-
eign Nations and among the several States;”
• an essay written by a New York Antifederalist stating that, under the
Constitution, Congress would enjoy plenary power over Indian af-
fairs;
• evidence supposedly showing that the regulation of Indian commerce
was understood to be more comprehensive than the regulation of
other forms of commerce;
• a passage in Attorney General Edmund Randolph’s 1791 opinion on
the constitutionality of a national bank; and
• several post-ratification congressional statutes.
97 U.S. CONST. art. I, § 9, cl. 6.
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I proceed to address each of these.
1. The Order of Drafting
One piece of evidence advanced to support the conclusion that the Indian Commerce Clause is broader than the Foreign and Interstate Commerce Clauses is that the Constitution’s framers added the words “with the Indian Tribes” after the foreign and interstate portions of the clause had been drafted.98
Proponents of this evidence do not explain how the succession of events at a closed convention could affect the ratifiers’ understanding of the completed document. They also overlook how the language came to be added: Madison moved to empower Congress to “regulate affairs with the Indians,”99 but the Convention trimmed “affairs” to “Commerce”—the same word employed for other trade relationships.
Moreover, if the ratifiers had known about the temporal drafting order, the implications would have been exactly the opposite of what proponents claim. If an object is added to an existing category, the addition implies that persons adding it believe the new object is in the same category—not in a different one. Suppose I show Rita two animals and she says, “Those are both dogs.” Then I present a third animal and she says, “That also is a dog.” She is telling me she believes the third animal is in the same class as the first and second. If she thought the third animal was, say, a cat, then she would not have called it a dog.
In sum, to the extent that the framers’ late addition of “with the Indian Tribes” has any probative power at all, it strengthens the conclusion that the framers thought commerce with the Natives was in the same general class as the two other forms of commerce.
2. An Antifederalist Screed
The second bit of evidence proffered to support the claim that the Indian Commerce Clause is broader than the scope of the Foreign and Interstate
98 Abel, supra note 2, at 437-38. Ablavsky and his sources contend that in the Constitutional Convention, late additions of enumerated powers—including the Indian Commerce Clause— were mostly uncontroversial and accepted, and that this suggests the clause was “open-ended.” Ablavsky, supra note 2, at 1038-39. Quite the contrary: On August 16, 1787, both Madison and Charles Pinckney proposed additional powers, a substantial number of which the delegates rejected. 2 FARRAND, supra note 2, at 324-26 (Aug. 16, 1787) (Madison). And as the text states, Madison’s proposed Indian affairs power was reduced in scope.
99 2 FARRAND, supra note 2, at 324 (Aug. 18, 1787) (Madison).
Commerce Clauses is an essay written in opposition to the Constitution. It appeared in the June 14, 1788, New York Journal over the name “Sydney.” The piece has been ascribed both to Abraham Yates and Robert Yates.100
The author complained that the Confederation Congress had interfered with the Indian affairs prerogatives of the states. He feared the Constitution would make federal intrusion worse. Here is the relevant passage:
If this was the conduct of [the Confederation] Congress and their officers,
when possessed of powers which were declared by them to be insufficient
for the purposes of government, what have we reasonably to expect will be
their conduct when possessed of the powers “to regulate commerce with
foreign nations, and among the several states, and with the Indian tribes,”
when they are armed with legislative, executive and judicial powers . . . .
will enervate their legislative rights, and totally surrender into the hands of
Congress the management and regulation of the Indian affairs, and expose
the Indian trade to an improper government . . . .101
However, “Sydney” did not say the Indian Commerce Clause would be the sole source of congressional authority. He may well have drawn his conclusion from the entire collection of Congress’s Indian affairs powers, including the Define and Punish Clause,102 the Necessary and Proper Clause,103 and the Territories and Property Clause.104 Indeed, one early congressional Indian-intercourse law apparently was based on the Territories and Property Clause, not on the Indian Commerce Clause.105
More likely, though, “Sydney” was not thinking about the new Congress
101 20 DOCUMENTARY HISTORY, supra note 2, at 1158.
102 U.S. CONST. art. I, § 8, cl. 10 ([The Congress shall have Power . . . ] To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations; . . .).
103 Id. art. I, § 8, cl. 18.
104 Id. art. IV, §3, cl. 2.
105 3 ANNALS OF CONG. 751 (Dec. 20, 1792) (justifying the 1792 Indian Intercourse Act by stating that “the power of the General Government to legislate in all the territory belonging to the Union, not within the limits of any particular State, cannot be doubted”).
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alone, but about the federal government as a whole. Observe how he transitioned from a complaint about the Confederation Congress “and their officers” to the new federal establishment “armed with legislative, executive and judicial powers.” The perceived threat came from the aggregate of all federal powers.
If so, then “Sydney’s” statement that the Constitution would “totally surrender” the management of Indian affairs to “Congress” arose from habit: The Confederation was still in existence when he wrote, and people referred to the central authority as “Congress.” It was understandable if the usage continued when mentioning the new federal government.
One last point: In my experience, Antifederalist expositions of constitutional meaning are not very reliable evidence of the Constitution’s actual meaning. They often contradict each other, ignore conventions of legal construction, misrepresent the text, or reflect ignorance of the goals behind the text they critique. Antifederalist representations are particularly weak in comparison with those issued by the Constitution’s sponsors.106
3. The Claim that the Regulation of Indian Commerce was Broader
than the Regulation of other Forms of Commerce
The next category of evidence advanced in support of a protean Commerce Clause consists of material supposedly showing that the Founding generation understood the regulation of Indian commerce/trade to be more inclusive than the regulation of foreign or interstate commerce/trade.107
Those advancing the claim seem to assume that regulation of foreign commerce consisted primarily of custom-house regulations; they do not consider the wide scope of the lex mercatoria.108 Yet the lex mercatoria included the subjects of trade regulations established in early Indian treaties.109 It also accommodated even the most ambitious regulations of Indian commerce then extant—those adopted by South Carolina. The South Carolina scheme included:
106 Natelson, Founders, supra note 2, at 60 (explaining why the representations of meaning from a measure’s sponsors are considered authoritative).
107 E.g., Ablavsky, supra note 2, at 1028-32.
108 Supra Part VI(D).
109 E.g., KAPPLER, supra note 2, at 10 (right of traders to enter into Indian territories), 16 (same), & 20 (traders must be licensed); 18 EARLY AMERICAN INDIAN DOCUMENTS 551 (Colin G. Calloway ed., 1994) (quoting Art. VI of a Sept. 23, 1789, proposed treaty with the Creeks as saying, “into which, or from which, the Creeks may import or export all the articles of goods and merchanise [sic] necessary to the Indian commerce”).
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• definitions and licensing of those permitted to carry out trade;
• restrictions on their activities, including geographic restrictions
on trading or navigating in foreign places;
• regulations on the conduct of trade;
• price controls and credit restrictions;
• regulations of inventory, including the designation of some
goods as contraband;
• appointment of commissioners to supervise the system and ad-
judicate disputes;
• administrative details, such as oaths and record keeping; and
• fees to pay for administration of the system.110
Nothing on this list exceeds the understood scope of the lex mercatoria applied to foreign commerce.
One writer points out, as further evidence that Indian commerce was broader than other forms of commerce, that Indian commerce encompassed trade in slaves.111 True, but so also did the lex mercatoria.112 The same writer observes that Americans used the Indian trade as a diplomatic tool113 and that captured or traded children sometimes were adopted.114 True, but international commerce also was (and is) a diplomatic tool. And the fact that children sometimes were adopted after they were traded does not render adoption policy an element of commercial regulation.115
4. Edmund Randolph’s National Bank Opinion
Advocates of the protean Commerce Clause hypothesis offer as evidence a passage in Attorney General Edmund Randolph’s 1791 opinion on the
110 Natelson, ICC, supra note 2, at 220-22.
111 Ablavsky, supra note 2, at 1031.
112 Cf. JACOB, supra note 2, at 12 (referring to “Negroes” as cargo), 171-72 (same), & 265 (exempting “Negroes” as “merchandise” from certain financial duties).
113 Ablavsky, supra note 2, at 1030.
114 Id. at 1031.
115 Cf. Natelson, Commerce, supra note 2, at 841-45 (explaining that the Founders understood the interrelationship between commerce and other activities, but still elected to divide the power to regulate commerce from the power to regulate other activities).
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constitutionality of a national bank.116 It reads:
Congress have also power to regulate commerce with foreign Nations,
among the several states, and with the Indian tribes. The heads of this
power with respect to foreign nations, are;
1. to prohibit them or their commodities from our ports.
2. to impose duties on them, where none existed before, or to
increase existing Duties on them.
3. to subject them to any species of Custom house regulations: or
4. to grant them any exemptions or privilages [sic] which policy
may suggest.
The heads of this power with respect to the several States, are little more, than to establish the forms of commercial intercourse between them, & to keep the prohibitions, which the Constitution imposes on that intercourse, undiminished in their operation: that is, to prevent taxes on imports or Exports; preferences to one port over another by any regulation of commerce or revenue; and duties upon the entering or clearing of the vessels of one State in the ports of another.
The heads of this power with respect to the Indian Tribes are
1. to prohibit the Indians from coming into, or trading within, the
United States.
2. to admit them with or without restrictions.
3. to prohibit citizens of the United States from trading with them;
or
4. to permit with or without restrictions.117
This passage is cited to show that Randolph thought “regulate Commerce” created different powers for each of its three objects.
But Randolph’s opinion merely lists the “heads” of each branch of the commerce power. It does not tell us whether Randolph thought those “heads” were the exclusive exercises of each power, or their most likely exercises, or the motivations for inserting each into the Constitution. The relevant 18th-century definitions of “head” do not resolve this question, since
116 Ablavsky, supra note 2, at 1027-28.
117 See Notes on Edmund Randolph’s Opinion on the Constitutionality of an Act to Establish a Bank, Founders Online, https://founders.archives.gov/documents/Hamilton/01-08-02-0045 (reproducing Randolph’s opinion in the editor’s notes).
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the word could mean either a principal element or a defining one.118
I believe Randoph used “head” to mean a purpose or expected exercise, rather than a definition.119 Modern writers sometimes underestimate Randolph, but he was a lawyer of very high reputation. He certainly knew that his four listed “heads” of foreign commerce, for example, fell far short of defining the scope of the law merchant.
Randolph’s opinion would have been better evidence for the protean Commerce Clause hypothesis if (1) his opinion purported to state the full extent of each commerce power and (2) it had been presented before May 29, 1790, the date the 13th state (Rhode Island) ratified the Constitution. If both had been true, it might have contributed to the understanding of the ratifiers. In the real world, it could have had no such effect.
5. Early Indian Intercourse Laws
During the 1790s, Congress passed a series of laws regulating relations with the Indians. The later acts repeated and refined the earlier ones and added supplemental regulations. Advocates of a protean Commerce Clause assume that the only constitutional justification for these laws was the Indian Commerce Clause. They therefore argue that these measures evince an understanding that “regulating Commerce” had a broader meaning when modified by “with Indian tribes” than when modified by “with foreign Nations” or “among the several States.”120
Initially, I should note that these statutes are not timely evidence of the ratifiers’ understanding. One was adopted several months after the ratifica-
118 E.g., SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH LANGUAGE (1756) (unpaginated) (offering, in addition to other meanings of “head,” the definition, “Principal topicks of discourse”); THOMAS SHERIDAN, A COMPLETE DICTIONARY OF THE ENGLISH LANGUAGE (1789) (unpaginated) (same definition).
119 See Prakash, supra note 2, at 1163:
Yet the well-known differences in motivation and in the expected uses of the
power to regulate commerce across the three subparts hardly prove the existence
of two or three different meanings for “regulate commerce.” As is well under-
stood even where intrasentence uniformity is not an issue, whatever the particular
motivation for granting authority, the textual grant may go beyond the particular
concern sought to be addressed.
120 E.g., COHEN, supra note 2, at 92 (citing these laws as evidence for the scope of the Indian Commerce Clause). See also AKHIL REED AMAR, AMERICA’ S CONSTITUTION: A BIOGRAPHY 107-08 (2005) (arguing that “Commerce” includes “all forms of intercourse in the affairs of life” and that certain provisions of the Indian Intercourse Act of 1790 support this broad understanding).
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tion was complete and the rest were enacted years later. The members of Congress who adopted them were not necessarily either framers or ratifiers, and their incentives—to interpret their own powers expansively—were quite different.
Moreover, the assumption that the Indian Commerce Clause was the only possible basis for these laws is simply false. They actually were supported by multiple constitutional clauses. The statutes included:
• Ordinary lex mercatoria regulations, including licensing requirements
for traders, bonding requirements, rules imposed on the regulators,
inventory control, and associated penalties for violation.121 These
regulations would, of course, be supported by the Indian Commerce
Clause.
• Criminal penalties on Indians who harmed whites and on whites who
harmed Indians.122 Depending on the details of these laws, they were
justified as exercises of the lex mercatoria, as “necessary and proper”
to the execution of treaties, and by the Define and Punish Clause.123
• Restrictions on land settlement and land purchase. The text of the
statutes tells us that these provisions were “necessary and proper” to
the making or execution of treaties.124
• Authorization to “ascertain[]” and “mark[]” boundaries determined
by treaty,125 and penalties associated with violating treaty bounda-
121 E.g., 1 Stat. 137-38, c. 34, §§ 1-3 (1790); 1 Stat. 329-30, c. 19, §§ 1-3 & 6 (1793); id. § 7; 1 Stat. 471-72, c. 30, §§ 8-11 (1796); 1 Stat. 745-46, c. 46, §§ 7-11 (1799).
122 E.g., 1 Stat. 138, c. 34, § 5 (1790); 1 Stat. 329, c. 19, § 4 (1793); 1 Stat. 470-71, c. 30, §§ 4 & 6 (1796); 1 Stat. 472-73, c. 30, § 14 (1796); 1 Stat. 744-45, c. 46, §§ 4 & 6 (1799).
123 Natelson, ICC, supra note 2, at 252-56 (stating that an extra-territorial criminal regulation in the 1790 act was justified both by the lex mercatoria and as “necessary and proper” to the execution of the Hopewell treaties). Actually, I understated my case. As to any persons within federal territories, such provisions also could be sustained under the Territories and Property Clause. Additionally, control of the movement of peoples across national lines—e.g., in and out of Indian country—was a recognized element of “defin[ing] the Law of Nations.” See Robert G. Natelson, Where Congress’s Power to Regulate Immigration Comes From, https://i2i.org/where-congresss-power-to-regulate-immigration-comes-from/ (collecting Founding-era sources classifying cross-border movement as a subject for the law of nations).
124 E.g., 1 Stat. 138, c. 34, § 4 (1790) (limiting the sale of lands “unless the same shall be made and duly executed at some public treaty”). See also 1 Stat. 330-31, c. 19, §§ 5 & 8 (1793) (restricting land sales unauthorized by treaty); 1 Stat. 475, c. 30, § 5 (1796) (banning settlement in violation of treaty); 1 Stat. 472, c. 30, § 12 (1796) (banning land sales except under treaty); 1 Stat. 744-46, c. 46, §§ 3-8 (1799) (regulating traffic and activity on lands secured by treaty).
125 1 Stat. 469, c. 30, § 1 (1796).
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ries.126 These provisions also were “necessary and proper” to treaty
enforcement.
• Authorization to the President to present gifts to Natives.127 Gifts
were part of normal diplomatic practice, both in European diploma-
cy128 and in relations with non-Europeans.129 The constitutional au-
thorization was, again, the Necessary and Proper Clause—to enable
the President to carry out his diplomatic responsibilities.130
• Judicial enforcement procedures,131 as authorized by Congress’s pow-
er to constitute tribunals inferior to the Supreme Court.132
As to Indians living in the federal territories, all these regulations could be supported by the Territories and Property Clause as well.133
Because all the provisions in these statutes are readily justified under other constitutional provisions, there is no reason to assume they rested on an expansive reading of the Indian Commerce Clause and remain relevant to federal power over Indian affairs today.134
Given the defects in all these forms of evidence, those advancing the implausible proposition that a single appearance of the word “Commerce” in a single clause changes meaning in response to its different objects have fallen far short of proving their case.
126 E.g., 1 Stat. 330, c. 19, § 5 (1793); 1 Stat. 470, c. 30, § 5 (1796); 1 Stat. 745, c. 46 § 5 (1799).
127 E.g., 1 Stat. 331, c. 19, § 9 (1793); 1 Stat. 472, c. 30, § 13 (1796); 1 Stat. 746-47, c. 46, §13 (1799).
128 See generally Robert G. Natelson, The Original Meaning of “Emoluments” in the Constitution, 52 GA. L. REV.1 (2017).
129 Henry Knox to George Washington, Jan. 4, 1790, available at https://founders.archives.gov/documents/Washington/05-04-02-0353 (“It seems to have been the custom of barbarous nations in all ages to expect and receive presents from those more civilized— and the custom seems confirmed by modern Europe with respect to Morocco, Algiers, Tunis and Tripoli. The practise [sic] of the British Government and its colonies of giving presents to the indians [sic] of North America is well known . . . .”).
130 The President’s foreign affairs powers derive from the enumeration in Article II, supplemented by the normal incidents thereof, as understood during the Founding. Supra note 34 and accompanying text.
131 E.g., 1 Stat. 138, c. 34, § 6 (1790); 1 Stat. 331, c. 19, §§ 10-11 (1793); 1 Stat. 473, c. 30, §15 (1796).
132 U.S. CONST. art. I, § 8, cl. 9.
133 Cf. 3 ANNALS OF CONG. 751 (Dec. 20, 1792) (justifying the 1792 Indian Intercourse Act by “the power of the General Government to legislate in all the territory belonging to the Union, not within the limits of any particular State”).
134 One might point out that the 1790 statute’s commercial regulations applied not merely to trade but to “intercourse.” 1 Stat. 137, c. 34 (1790). See also 1 Stat. 329, c. 19 (1793). This was cured in the 1796 statute, which applied them only to “traders.” 1 Stat. 471, c. 30, § 7 (1796).
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VIII. COMMENTS ON PROFESSOR ABLAVSKY’S BEYOND THE INDIAN
COMMERCE CLAUSE
In Beyond the Indian Commerce Clause, Professor Gregory Ablavsky relies heavily on usages and statements that he says are derived from the period during the administration of President George Washington, but at the expense of evidence (such as the content of the lex mercatoria and pre-existing regulatory statutes) that could have been within the contemplation of the Constitution’s framers and ratifiers. He justifies the use of this evidence as part of his “heterodox”135 and “holistic” method of interpretation, which he contrasts with methods he labels “clause bound.”136
Ablavsky’s article is marred by a disturbing number of misleading or otherwise defective citations, which I have itemized elsewhere.137 When those citations are corrected, the usages and views during the Washington administration sometimes turn out to be different, or the context different, from how describes them.138 This Part VIII, however, focuses on his methodology alone.
As an initial matter, it is problematic to apply “heterodox” interpretive methods to a document designed to be construed according to orthodox ones. If interpreters can craft and apply unanticipated interpretive methods to the Constitution, then they, and not the Constitution, become the “supreme Law of the Land.”139
Ablavsky does not define what he means by a “holistic” interpretive approach. The word “holistic” can have either of two meanings,140 which,
135 Ablavsky, supra note 2, at 1017.
136 He repeats the epithet “clause bound” on five separate occasions. Id. at 1040, 1044, 1050, 1051, & 1052 n.210.
137 See Cite-Checking Professor Ablavsky’s “Beyond the Indian Commerce Clause,” available at https://i2i.org/wp-content/uploads/ICC-addendum-final.pdf.
138 Id.
139 Supra notes 19-20 and accompanying text.
140 The online version of Merriam-Webster’s Dictionary defines “holistic” as “of or relating to holism.” Holistic, Merriam-Webster, https://www.merriam-webster.com/dictionary/holistic (last accessed Jun. 10, 2022). It defines “holism” as follows:
1: a theory that the universe and especially living nature is correctly seen in
terms of interacting wholes (as of living organisms) that are more than the
mere sum of elementary particles
2 : a study or method of treatment that is concerned with wholes or with complete systems : a holistic study or method of treatment
Holism, Merriam-Webster, https://www.merriam-webster.com/dictionary/holism (last accessed, Jun. 10, 2022).
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when applied to constitutional interpretation, translate into a wider and a narrower version. In the wider version, the interpreter fills in the blanks between constitutional provisions, thereby making the whole greater than the sum of the parts. A famous example is the “emanations and penumbras” approach suggested by the Supreme Court in Griswold v. Connecticut,141 but never integrated into the Court’s jurisprudence. One problem with this procedure is that when we insert words that aren’t in the text, we upset the balance of values the framers adopted when composing that text.142 Another problem is that when applied to enumerated powers such as the Indian Commerce Clause, this method directly violates the mandates of the Ninth and Tenth Amendments, which leave power-gaps to be filled by the states and the people, not by creative constitutional interpretation.143
When the narrower sense of “holistic” is applied to constitutional interpretation, it means only that in construing a provision, we consider all relevant evidence and view the provision within the context of the remainder of the document. “Holism” in this sense is uncontroversial.
It may be that Ablavsky’s reliance on putative practices and views of the Washington administration derive from the wider version of “holism.” One difficulty with including these practices and views is that they could not have been known to those who ratified the Constitution. Another is that the Washington administration’s understanding of the Constitution’s full range of Indian affairs powers cannot justify continued federal plenary power when, as Ablavsky acknowledges, all the “props that once supported exclusive federal power have been knocked out, [and] only a single slender pillar [the Indian Commerce Clause] survives to support the edifice.”144 The classic legal response to this development would be to say, “The reason for the
141 381 U.S. 479, 484 (1965). The approach has been widely ridiculed. See, e.g., Andrew P. Morriss & Richard L. Stroup, Quartering Species: The “Living Constitution,” the Third Amendment, and the Endangered Species Act, 30 J. ENVIR. L. 769 (2000) (satirically applying a similar “fill in the blanks” approach to conclude that the Endangered Species Act violates the Third Amendment”).
142 Cf. New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2131 (2022) (stating that the words of the Second Amendment are the product of balancing, and that courts should not replace that balance with their own).
143 See NATELSON, TOC, supra note 2, at 239-49 (discussing the intended roles of the Ninth and Tenth Amendments).
144 Ablavsky, supra note 2, at 1051.
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law having ended, the law itself ends.”145
Whichever holistic approach is applied, however, both require consideration of all significant evidence. It is not sufficient to conclude that the framers intended the Indian Commerce Clause to be “open-ended”146—a conclusion that would require overlooking their rejection of Madison’s proposal to grant Congress authority over all Indian “affairs.”147 Likewise, it is not sufficient to focus on statements and actions by self-interested parties after the ratification and neglect key evidence—such as the content of the lex mercatoria—arising before the ratification. An interpretive exercise that neglects important evidence is not holistic.
Finally, in arguing for his broad reading of Congress’s Indian affairs authority, Ablavsky draws an analogy to the federal government’s early interpretation of its foreign affairs authority, suggesting that this interpretation was broader than a strict reading of the Constitution’s enumerated powers would seem to authorize.148 However, the Constitution’s enumerated foreign affairs powers—like all of its other enumerated powers—carry with them certain incidental powers. Those incidental powers, like all others, were the product of precedent and reasonable necessity,149 not of mere creativity or usurpation. There seems to be nothing in the early interpretation that exceeded those incidents.150
IX. CONCLUSION : THE INDIAN CHILD WELFARE ACT
The ICWA was not the product of a treaty nor does it implement a treaty. It is not a regulation of federal land. It is not an exercise of diplomatic or war powers or a feature of the law of nations. As this article has demonstrated,
145 The maxim—in Latin, Cessante ratione, cessat et ipsa lex—was part of Founding-era jurisprudence. 2 WILLIAM BLACKSTONE , COMMENTARIES *391 & 4 id. at 330.
146 Ablavsky, supra note 2, at 1033-39.
147 James Madison proposed an Indian affairs power on the Convention floor, 2 FARRAND, supra note 2, at 324 (Aug. 18, 1787), and the committee of detail also considered one. Id. at 143,159.
148 Ablavsky, supra note 2, at 1052 n.210. Ablavsky relies on Andrew Kent, The New Originalism and the Foreign Affairs Constitution, 82 FORDHAM L. R EV. 757 (2011), which fails to acknowledge the role of the Founding-era incidental powers doctrine and its application to the Constitution’s foreign affairs powers.
149 Robert G. Natelson, The Legal Origins of the Necessary and Proper Clause in GARY LAWSON, GEOFFREY P. MILLER, ROBERT G. NATELSON, & GUY I. SEIDMAN, THE ORIGINS OF THE NECESSARY AND PROPER CLAUSE 60-68 (2010).
150 Natelson, TOC, supra note 2, at 159-66 (discussing foreign affairs powers and their incidents).
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it is not a regulation authorized by the Indian Commerce Clause.
This conclusion is buttressed by another form of evidence. During the ratification debates, leading advocates for the Constitution—mostly lawyers of high reputation—publicly represented the federal government’s limits by issuing lists of activities the government could not regulate.151 These lists were remarkably consistent with each other. They included criminal law, property law, governance of education and religion, contract law, regulation of infrastructure, welfare policy—and family law.
The sponsors’ representations of constitutional meaning to the ratifying public are reliable evidence of that meaning. The lists tell us that, in the absence of a treaty to the contrary, family law is not within the purview of the federal government, but of the states. Although the federal government could have negotiated treaties with the tribes embodying the terms of the ICWA, it never has. Congress has no power to impose those terms unilaterally.
• Brief of Amicus Curiae Professor Gregory Ablavsky in Support of Federal Parties and Tribal Defendants, Brackeen v. Haaland, No. 21-376 (Sup. Ct. Aug. 22, 2022), available at
https://sct.narf.org/documents/haaland_v_brackeen/amicus_ablavsky.pdf.
• Stephen Andrews, In Defense of the Indian Commerce Clause, 9 AM. INDIAN L.J. 182 (2021), available at https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=1229
&context=ailj.
• Christopher R. Green, Tribes, Nations, States: Our Three Commerce Powers (Aug. 1, 2022), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3679265.
• Lorianne Updike Toler, The Missing Indian Affairs Clause, 88 U. Chi. L. Rev. 413 (2021), available at https://chicagounbound.uchicago.edu/uclrev/vol88/iss2/3/.
151 They are collected in these three works:More News on the Powers Reserved Exclusively to theStates, 20 FEDERALIST SOC’Y REV. 92 (2019); Natelson, Founders, supra note 2, at 60, & Natelson,Enumerated, supranote 2.
Natelson, Robert G. “The Original Understanding of the Indian Commerce Clause: An Update.” Federalist Society Review 23 (8 2022): 209-237.
INDIAN COMMERCE CLAUSE: AN UPDATE, at
