Anon4fun recently posted a comment on this blog involving the alleged “commercial” nature imputed by the courts to anyone who is driving an automobile. According to Anon4fun,
“Re: Your comment of: Driving as a “commercial” activity.
“In the eyes/minds,etc., of ALL the courts I am aware of, a, or any “driver of a motor vehicle” IS engaging/participating,etc., in commercial activity. Every word/term used in the motor vehicle code is a commerce word/term,e.g “passenger.” We know that a passenger is a “paying customer.” I don’t think it is “just coincidental” that the Court in Gallagher v. Montplier, 52 ALR 744; 5 Am Jur. page 645,said,in pertinent part: “A traveler by automobile;” and not a “driver of a motor vehicle.”
“At Common Law there is no precise limit of speed. A traveler by automobile must adopt a reasonable speed.” Gallagher v. Montplier, 52 ALR 744; 5 Am Jur. page 645.”
Virtually anyone who’s studied traffic law has run into one or more court cases that appear to describe all “driving” as “commercial activity”.
Many people who’ve tries to resist traffic laws, have done so by denying that they are engaged in “commercial activity”. I suppose a few may have succeeded with that line of defense. I presume that most have failed.
But it occurs to me that if driving is always deemed to be a “commercial activity,” maybe we should go with the flow. Maybe we should use “commercial activity” the way a judo expert uses his adversary’s weight and momentum to defeat his adversary.
In the end, the issue may not be whether we are engaged in “commerce,” but where we are engaged in “commerce”.
I.e., Article 1.8.3 of the federal Constitution expressly declares the power of the federal government to regulate “commerce among the several States” (of the Union). So far as I know, Article 1.8.3 includes the only express reference in the Constitution to “commerce”. Note the express language: ”commerce among the several States“.
Note also that the term “interstate commerce” does not appear in the federal Constitution. The question, then, is this: as used today, are the terms “interstate commerce” and “commerce among the several States” synonymous?
I don’t know where or when the term “interstate commerce” first appeared. I don’t doubt that the word can be found in Supreme Court cases at least back into the 1800s. I don’t doubt that as originally used by the courts, “interstate commerce” may have been a kind of “shorthand” for “commerce among the several States”. It may also have been shorthand for commerce between only one State of the Union and a territory (like Guam, US Virgin Islands) or even with Washington DC.
But note that “commerce among the several States” of the Union clearly refers to commerce between two or more States of the Union. I.e., commerce between The State of Texas and The State of New York would be “commerce among the several States” and could therefore be regulated under Article 1.8.3. But commerce between The State of Texas and Washington DC would not be “commerce among the several States” since Washington DC is not a State of the Union. It’s conceivable that “interstate commerce” may have been initially intended to describe commerce between only one State of the Union and a “territory” like Washington DC or of the Territory of New Mexico or other territories before they became States of the Union.
Whatever the definition for “interstate commerce,” it appears probable that any “commercial activity” that includes any territory would be inconsistent with Article 1.8.3–which expressly applies to only the “several States” of the Union. It may follow that any statutory definition of “commerce” or “interstate commerce” that includes territories and/or Washington DC would not be “commerce among the several States” as defined by the Constitution at Article 1.8.3.
Therefore, I strongly suspect that, sometime after A.D. 1933 and the onset of New Deal, the term “interstate commerce” may have been redefined to signify commerce between one or more of the administrative divisions (TX, CA, FL, NY, etc.) of the territory of the United States often referred to as “this state”.
There would also be a third form of “commercial activity”: intrastate commerce.
The term “Intrastate commerce” might be currently defined by federal statute to mean “commercial activity” completely within one of the administrative divisions (say, TX) of the territory of the United States (“this state”). But I could also define “intrastate commerce” to mean “commerce confined entirely within the borders of a single State of the Union” (like The State of Texas). If I introduced my definition of “intrastate” commerce into a court case, who would deny my definition under oath, on the record and in front of a jury? Who would dare testify to the jury that we weren’t really within The State of Texas, but were instead in “TX” and/or “this state”?
Let’s suppose that there are truly three varieties of “commerce”: 1) among the States of the Union; and 2) in the territories of “this state”; and 3) within a single State of the Union.
If that were true, then whenever the court referred to “commerce” or “commercial activity,” the court’s language would be imprecise and ambiguous. When the court says “commercial actitivity,” is it talking about “commercial activity” among two or more of the State of the Union, in the territory of “this state” or exclusively within a single State of the Union?
So, what would happen if I were accused of engaging in the “commercial activity” while driving an automobile and I testified that, “Yes, indeed, I was engaged in ‘commerce among the several States‘ of the Union as per Article 1.8.3 of the federal Constitution–or in the alternative, I was driving in intrastate commerce within the borders of a single State of the Union“?
I’m not denying that I was engaged in commerce. I’m admitting the “commerce,” but I’m only admitting it within a State of the Union. I am betting that the courts of “this state” may have no authority or jurisdiction over acts committed within the borders of a State of the Union. More, I’m betting that, faced with an effective presentation of the “The State vs this state” dichotomy, the court will be extremely reluctant to proceed.
(As part of my admission that I’m engaged in “commerce,” I might even carry a handful of silver dimes in my pocket and give one silver dime as a gift to anyone who was about to ride in my automobile as a “passenger”. Then, when the “passenger” entered my vehicle, I would charge them one silver dime as payment for my commercial services. Now, under Article 1.10.1 (“No State shall make any Thing but gold and silver Coin a Tender in Payment of Debts.”), I have just charged and been paid one silver dime and thereby created more evidence that my “commercial activity” was performed within the borders of a State of the Union. A passenger who had paid me one silver dime and was willing to testify to that payment would be a second witness to my claim that I’m driving “commercially”–but only within a State of the Union. It’s conceivable that I might be safer with a “passenger” in my vehicle than driving by myself, since my “passenger” could testify I was “driving” in the venue/plane of The State of Texas.
Heck, I might even make up ten or twelve of those “dime cards” that included text referencing Articles 1.8.3 and 1.10.1 of the Constitution and defined that particular dime as being a payment for riding as a passenger in my car within the borders of The State of Texas–one of the other “several States” of the Union. If I produced such dime card in court as evidence that payment for my “commercial activities” was made in silver and within a State of the Union, I’d have a better chance of winning my defense.)
Now what? Under the authority of Article 1.8.3 of the federal Constitution and/or the logic of my definition of “intrastate commerce,” I have just testified that my “commercial activity” took place within the borders and venue/plane of a State of the Union. Within the States of the Union, the federal government has only limited powers specified in Article 1 of the federal Constitution. I doubt that any governmental agency can operate within the States of the Union without using gold or silver coin. I am confident (but not certain) that what currently passes for government does not want, and may not even be legally able, to enter into the States of the Union.
If so, once I’ve admitted under oath that my “commercial activities” (as per 1.8.3) are taking place within a venue that implicates the States of the Union, I suspect that the gov-co might have only three choices: 1) deny that I was engaged in any “commercial activity”; 2) claim on the record that my “commercial activity” was “interstate” (in “this state”) rather than “among the several States” of the Union as per 1.8.3 or exclusively within a single State of the Union (intrastate commerce); and 3) drop the case.
I’m not suggesting that my hypothetical strategy is guaranteed to work in a “legal” sense. I’m suggesting that it has a high probability of succeeding in a “political” sense. Yes, the prosecutor may have a bushel-basket full of statutes and court cases that define “interstate” and even “intrastate” commerce to take place in the territory of “this state”. Legally, he can probably defeat my arguments. But once I’ve expressly testified under oath, on the record, and in front of a jury, that all of my commercial activities took place within the borders of one or more of the “several States” of the Union, will the prosecutor dare to refute my testimony by claiming that my commercial activities actually took place in the fictonal “territory” of “this state”? Will he make such admissions in front of a jury? I doubt it.
I don’t doubt that a decent prosecutor can beat me as a matter of law. But–assuming the “The State vs. this state” dichotomy is real–will any prosecutor risk exposing “this state” on the record, just to convict me of driving without a license? Nothing’s impossible–but it ain’t likely.