What do we learn from the Founding-era translations of the Constitution?

August 27

Earlier this week I posted about an interesting new article, Founding-Era Translations of the United States Constitution. In it, I noted quickly that I had learned a lot from the article, but didn’t have time to actually say what I’d learned, and several of you have asked for more.

The article itself contains findings about specific words — of particular interest might be the German translation of the word “commerce.” The authors explain:

The German translation seems to aim at a compromise …. When translating “Commerce” the translator had a number of choices: ‘Commercium,’ ‘Kaufmannschaft,’ ‘Handel,’ ‘Handlung,’ and ‘Handelschaft.’ He chose the last, ‘Handelschaft,’ a term that at the time already had become outmoded. Both Kruenitz, an 18th century encyclopedia edited between 1773 and 1858 and Adelung, an 18th century German critical dictionary edited between 1793 and 1810, define ‘Handelschaft’ as the business of exchanging goods with the purpose of profit.
The root word of ‘Handelschaft’ is ‘Handel,’ which in its general meaning was very close to the English ‘handling.’ However, when used in the context of commerce, ‘Handel’ was understood “to broadly comprise any activity which creates a noteworthy change in an object” so long as the activity was directed to profit. In its common use, however, the term was usually limited “to (ex-)change of property.” Used as a collectivum, when the exchange of goods is someone’s business, ‘Handel’ and ‘Handelschaft,’ the term the German print uses, become synonymous.
From this evidence, we can draw the contours of the term’s meaning. ‘Handelschaft’ denotes the full field of the merchants’ trade, comprising exchanging goods for goods or bills, and possibly including the shipment and transportation of goods. This meaning also opens up the possibility that ‘commerce’ comprises the larger scope of actions and interactions of persons involved in business.
The German translator could have made a different choice here: ‘Kaufmannschaft,’ the German cognate to the term the Dutch translation uses (‘Koopmanschap’). This term would have had a more narrow meaning, particularly according to S.J.E. Stosch, an 18th century clergyman who is known for his meditations on word-use. Stosch limits ‘Kaumfannschaft’ solely to the exchange of goods for money, whereas ‘Handelschaft’ or ‘Handlung’ is said to be the adequate terms for the broader scope of a merchant’s action. Stosch also suggests that “Handelschaft” presupposes a business of a certain size, territorial scope and professionalism. Nonetheless, often, the terms ‘Handelschaft’ and ‘Kaufmannschaft’ would be used synonymously.
It is notable that an even more broad term could have been used for ‘commerce’ — its German cognate “Commerz” or “Kommerz” (derived from the Latin “commercium” and in this form, “das Commercium,” also found in German language). During the time of the translation, however, ‘Commerz’ and ‘Kommerz’ were not much in use. In an English-German dictionary from 1800, Ebers defines ‘commerce’ as “the concurse/interaction of one with another,” expressing a view similar to Balkin’s. However, the German translator did not choose this locution in his translation of the Constitution.

I read this passage as suggesting that the much-maligned “economic/non-economic” distinction in United States v. Lopez might not be so crazy after all.

Two other offhand observations. First: One theory of the authority of the Federalist Papers (only sort of mine) is that they deserve no special status on account of their authors or their role in ratification — they simply reflect the views of smart, educated people at the time of the Founding and therefore are a useful datum in originalist interpretation. On that theory, I assume the views of the German and Dutch translators would be entitled to similar authority.

Second: When Congress was first meeting, there was a proposal to have all federal statutes promulgated in both English and German (for reasons similar to the reasons for the Constitutional translation). That proposal was rejected, saving generations of law students from having to learn puzzles about bilingual statutory interpretation. But had that proposal been accepted, presumably “translation of federal law” would already be a widely accepted academic subspecialty.

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).
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