That's very interesting. I'm not going to argue with your claim, because I assume you know more about it than I do. But it's a very strange idea, because in many ways commerce is more fundamental than anything in the Constitution or its amendments. Take away everything in the Bill of Rights, all the freedoms defined in the Constitution and our heritage of common law, take it all away and you can still have a society. It would be a terrible, awful society that no one would choose to live in (probably something like the DPRK) but it would still be a society. But without commerce, it is simply not possible to even have a society. I would go even further and say that a vanishingly small percentage of people would even be able to survive without commerce. So in a certain sense it's just as important as air, food, and water.
You can argue that government isn't necessary to enable commerce. That you could have a world that has commerce without government. But even if that were true, in the world we do have, commerce is built upon the infrastructure provided by government. Just like the road system. And the government is thus entitled to regulate commerce just like it regulates left-hand turns on roads.
Of course, this is just an argument that regulation of monetary transactions is consistent with the assumptions underlying our institutions. I have no opinion on whether money-laundering controls are a good idea or not.
People still bartered, which is recognized and taxed as commerce by the US government. They did not build or repair their own tools, for example - the village blacksmith was usually the most important man in town (or the region). You could argue that once they had a set of tools and land, people could be self-sufficient, but they still engaged in trade. And they would not have been able to be self-sufficient without trading beforehand - how else would you get a horse?
https://en.wikipedia.org/wiki/Silent_trade
Realistically, in Colonial America, reputation systems and the like were probably used far more than courts.
In fact, even today, extra-legal systems are widely used. My company buys SAAS services primarily from the US and Australia, but we have little ability to use the courts in either of those countries. How do we know Atlassian or Cloudflare won't take our rupees and run?
"But even if that were true, in the world we do have, commerce is built upon the infrastructure provided by government. Just like the road system. And the government is thus entitled to regulate commerce just like it regulates left-hand turns on roads."
So by this argument, if the first amendment didn't exist, the government would have the right to regulate speech that uses public infrastructure (anything on public airwaves, the internet, delivered via the mail system, etc)? To make things more concrete, could the US government make a law "No one shall manufacture or sell a wallet"? (to pick the first thing that I saw).
Note that I personally am kind of ok with this, because the whole point of being sovereign is that you can do what you want; but I'm interested in exploring the justifications used to get people to buy into the system.
Common law contract and tort principles were well-developed back then, and indeed were created for situations like ordering horseshoes from the village blacksmith, or ordering a new axle for your windmill.[1]
> So by this argument, if the first amendment didn't exist, the government would have the right to regulate speech that uses public infrastructure (anything on public airwaves, the internet, delivered via the mail system, etc)?
No, because the first amendment does not create the right to free speech, but recognizes a right to free speech that already existed. But if that wasn't the case, then I think the answer would be yes.
> So by this argument, if the first amendment didn't exist, the government would have the right to regulate speech that uses public infrastructure (anything on public airwaves, the internet, delivered via the mail system, etc)?
More generally: no western government recognizes a "fundamental right to commerce" such that restrictions on commerce require the existence of "bad" conduct worthy of punishment.[1] There is nothing "bad" about not implementing money laundering controls, just as there is nothing "bad" about talking a left turn on Constitution Ave between 9-5 on a weekday. But the government doesn't need to show its "bad" to implement the regulation.
[1] Though we kind of tried that in the U.S. under the concept of economic due process.