The Contractarian Commerce Clause: The Significance of the Social Contract, Property Rights, and the Execution of Commerce in the Foundation of American government

Captain Christopher Michael Hocking, USAF, "The Contractarian Commerce Clause: The Significance of the Social Contract, Property Rights, and the Execution of Commerce in the Foundation of American Government" M.A., University of Virginia, 2011. This thesis examines the impact and significance of the inclusion of the commerce clause in the United States Constitution. In examining this brief and seemingly unassuming clause, I demonstrate that the foundations of commerce and the role of the commerce clause in the founding of the United States were a distinct departure from contemporary forms of republican government. Had the clause not been included in the Constitution, the United States would have developed in a markedly different manner. This is a largely theoretical work focusing on foundational political theory and Supreme Court jurisprudence. I focus on five different themes: (1) the development of the social contract in English history, (2) the critical nature of private property, individual agency, and free trade within the social contract through Hobbes, Locke, and Montesquieu, (3) broad statements of commerce and private property within the English Rights tradition, (4) the importation and modification of these ideas by the American colonists which led to the abandonment of mercantilism and the adoption of a free-market economic system, and (5) the ruling of the Supreme Court concerning the commerce clause and the significance of those findings. This thesis challenges the idea that commerce and free-market behavior are detrimental to the sustainment of democracy and argues that the commerce clause and its theoretical foundations should not be overlooked or ignored in the study of the development of the United States. iii 1 The Commerce Clause, in Article I, Section 8, Clause 3 of the United States Constitution, states: [the Congress shall have Power] to regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes. This brief statement of enumerated power has created numerous opportunities for the expansion of the federal government's power through the rulings of the Supreme Court and congressional legislation. More importantly, the statement of the Commerce Clause is unique in the way that it grants the federal government explicit power over commerce. An examination of constitutions contemporary to the US Constitution – the French Constitution being perhaps the most notable example – demonstrates a conspicuous lack of articulation of the unified state's power over commerce. In other contemporary monarchical states, there was no need for an articulation of the role of commerce in relation to the government's authority. Economic policy was, both in practice and in fact, a unitary concept. What was best for the sovereign was best for the state. As a result, the monarch executed his or her authority over commercial acts in whatever manner deemed most appropriate. It is striking that the US Constitution grants such sweeping power to the federal government, especially when the Constitution was the product of a people who fought so hard and long to be free of a system of government that exerted absolute control over 2 commerce. The new Americans were the product of a rich heritage of rights inherited over five centuries of philosophy, political theory, and individual rights within the social contract. It is from these rights that the foundational ideas of the United States are derived. Unsurprisingly, individual ownership and exercise of one's rights over property are fundamental to the American understanding of freedom. Moreover, the preeminence of property rights is considered integral to a vibrant democracy. The ability of the individual to exert unrestricted control over his private property within the open market is at its core, though not in the legal sense which we understand today, commerce. Individual control over private property became essential to American democracy. Thus without a stated understanding of the importance of private property in the American tradition and the commercial undertakings which result from the possession of private property, the root causes for the Revolutionary War become elusive. Commerce, not simply commercial activity for the sake of profit, but a specific economic policy embraced in the Constitution was essential to the creation of the United States. The foundations of commerce and the role of the commerce clause in the founding of the United States represented a distinct departure from other 18 th century forms of republican government. To understand the significance of the commerce clause's foundations, it is first necessary to examine the role of the social contract since it serves as the most significant foundation for private property. The fundamental idea of the social contract comes from the enlightenment definitions by political philosophers such as Thomas Hobbes and John 3 Locke. Hobbes wrote extensively about the state of nature – most importantly that it is a chaotic, dangerous condition. Without first understanding what contractarian society entails, it is impossible to understand why the statement of the commerce clause is unique and why the clause signals a very different kind of founding document than had ever been written before. This consideration of the commerce clause's foundations will examine several major themes. The initial understanding of the clause, derived from Supreme Court cases, indicates how the Founding Fathers understood the role of property and commerce within the young republic. This understanding was informed by specific ideas, in particular the evolution of contract theory from Hobbes to Locke, focusing on property rights and the effects of the property on rights and individual freedoms. These themes must be examined in order to understand the context of the clause, the necessity of its inclusion in the Constitution, and the clause's effect on the formation of the nation. In order to understand the clause, it is essential to examine the idea of commerce as a distinct entity through statements of property rights and the role of the social contract as it regards property. These twin claims will be examined and, through this consideration, I argue that the commerce clause is unique to the American Constitution as it is the first statement of free market economics in any founding document. Furthermore, without the peculiar affect of commerce though the evolution of the social contract and private property rights, the Constitution and the ideas of freedom that it articulates would not have developed in the same manner. 4 Hobbes' Social Contract The foundation of the modern democratic state is the social contract. Without the movement away from the divine right of kings toward the social contract, democracy as it was understood in the 18 th century would have never come to fruition. The ideas which result from the contract are woven into the Articles of Confederation and the Constitution. To understand fully the significance of the commerce clause within the overall scheme of American democracy, it is first important to understand the underlying contract theory that created liberal society. Social contract theory, or contractarianism, is composed of several elements. The foundation of a state's internal and external sovereignty is the social contract. Implicit to the existence of the social contract is the idea of a willing transfer of power and certain rights, and, therefore, the administration of those rights, to an absolute "sovereign power." A prior of contract theory is the initial bargaining position in which all individuals find themselves outside of the contract. This transfer occurs because, in the state of nature, individuals are unable to govern themselves and live in a way that moves them beyond a natural and constant state of war as they compete for resources and a better life, or worse, simply for existence. Individuals enter into a social contract, abrogating their claim on the right to self-governance and instituting a commonwealth executed by a sovereign when all individuals acknowledge that, as Thomas Hobbes wrote, "I Authorize5 and give up my Right of Governing my selfe, to this Man, or to thie Assembly of men, on this condition, that thou give up thy Right to him, and Authorize all his Actions in the like manner." 1 Hobbes' definition of the sovereign suggests two implicit capabilities allowed to the sovereign. First, the sovereign has absolute power within the scope of his realm. There are no external forces which could compel behavior or pass any kind of judgment on the sovereign; if this were not the case, the sovereign could not uphold his obligations under the contract. Second, the sovereign is indivisible and shares his authority with no one. If the power of the sovereign were divisible, it would lead to the degradation of his power and an inability to protect the contract. Hobbes created the first statement of contract theory, one that weighed heavily upon the English system of government and served as a precursor for the rights tradition in England. Hobbes' contract theory is not the only foundation on which American republicanism was created, though his influence is undeniable in the English rights tradition. Locke articulates a very similar understanding of the social contract in his Second Treatise on Government. Departing from the dismal (nasty, brutish, and short) theoretical articulation of Hobbes' state of nature, Locke says of the state of nature that the "want of a common judge, with authority, puts all persons in a state of nature."

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