The Weights and Measures Clause

The Congress shall have Power To . . . fix the Standard of Weights and Measures . . . .

—Eric Chiappinelli

Introduction

From time immemorial, governments have recognized the importance of fair standards for weights and measures. The Constitution grants Congress the power to set uniform weights and measures nationwide. In 1790, Thomas Jefferson proposed a system of measurements based on the decimal system, but it was not adopted. Later, Congress would authorize the use of both the English and Metric systems of measurement, but neither system is mandated.

History Before 1787

The importance of fair weights and measures dates back to ancient times. In the Book of Leviticus, the Lord told Moses, “You shall not commit a perversion of justice with measures, weights, or liquid measures.” The verse continues, “You shall have true scales [and] true weights. . . .” The Book of Proverbs warns that “[d]eceitful scales are an abomination of the Lord; when willful wickedness comes, then comes disgrace.”

Since the late eleventh century, the English Crown or Parliament has had the power to establish national standards of weights and measures. However, it appears that official standards were frequently ignored throughout England.¹ The Articles of Confederation gave the central government “the sole and exclusive right and power of . . . fixing the Standard of Weights and Measures throughout the United States.”² On July 6, 1785, the Confederation Congress resolved that the “money Unit” would be “one dollar” and that the “smallest coin [would] be of copper, of which 200 shall pass for one dollar.”³ This currency did not follow a decimal system of measurement.

The Constitutional Convention

During the Constitutional Convention, there was widespread agreement about the Weights and Measures Clause. A draft from the Committee of Detail provided that Congress would have the “exclusive Right of . . . fixing the Standard of Weights and Measures throughout [the United States].⁴ Other drafts had similar language.⁵ On August 6, John Rutledge of South Carolina delivered the Committee of Detail’s report to the Convention.⁶ The plan gave Congress the power “to fix the standard of weights and measures.”⁷

On August 16, the Convention adopted this provision without any recorded debate.⁸ The Weights and Measures Clause would permit the federal government to adopt and enforce national measurement standards based on the prevailing consensus.⁹ This consensus would facilitate both domestic and international commerce.

The Ratification Debates

The Weights and Measures Clause seems not to have excited opposition during ratification. In Federalist No. 42, James Madison merely mentions the clause in a “cursory review” of powers intended to “provide for the harmony and proper intercourse among the states.”

The First Congress

In January 1790, President George Washington urged Congress to turn its attention to weights and measures in his first address to that body: “Uniformity in the Currency, Weights and Measures of the United States is an object of great importance, and will, I am persuaded, be duly attended to.”¹⁰ In response, Congress requested Secretary of State Thomas Jefferson to prepare a report. In July 1790, Jefferson submitted his “Plan for Establishing Uniformity in the Coinage, Weights, and Measures of the United States” to the House of Representatives.¹¹ Jefferson in fact offered two plans. The first set the measure of length (miles, feet, and inches); capacity (pints, quarts, gallons); and weights (ounces and pounds). The second proposed to reduce “every branch to the same decimal ratio already established in their coins, and thus bring[] the calculation of the principal affairs of life within the arithmetic of every man who can multiply and divide plain numbers.” There would be 10 inches in a foot and 10,000 feet in a mile, an ounce would be one-tenth of a pound, and there would be 100 cents in a dollar.

Congress took no action on either of Jefferson’s proposals.¹² On October 25, 1791, President Washington’s message to Congress reiterated the importance of weights and measures, urging that “[a] uniformity in the weights and measures of the country is among the important objects submitted to you by the Constitution.”¹³ Again, no action was taken on the measure.

Early Practice

The Coinage Act of 1792 set the value of one dollar as “the value of a Spanish milled dollar.”¹⁴ It also adopted a decimal system of currency: A “cent” would be a “hundredth part of a dollar.”¹⁵ But Congress still did not act on Jefferson’s proposal. In 1799, Congress addressed weights and measures indirectly. A statute directed the surveyors of each port to calibrate their instruments for weights and measures, which were used to assess duties.¹⁶ However, no standards had been adopted against which to calibrate those instruments.¹⁷

In 1816, President James Madison recommended in his State of the Union address that Congress provide for uniform weights and measures. He observed that “no adequate provision has yet been made, for the uniformity of weights and measures, also contemplated by the Constitution.”¹⁸

Madison favored Jefferson’s decimal system. The next year, the Senate requested a report on the matter from the Secretary of State.¹⁹ In 1821, Secretary of State John Quincy Adams presented a 250-page report to Congress.²⁰ Adams’s report rejected adopting France’s metric system and proposed no federal enforcement mechanism. Congress decided to remain on the English system, as a result of which the states would be responsible for applying the standards.

By 1830, Congress realized that different ports of entry used different weights and measures to assess duties.²¹ This wide variation in duties resulted in a loss of considerable revenue. The Senate passed a resolution directing “the Secretary of the Treasury . . . to cause a comparison to be made of the standards of weight and measure now used at the principle [sic] custom houses in the United States.”²² In 1836, Congress passed a joint resolution, which President Martin Van Buren approved,²³ directing the Secretary of the Treasury to adopt a “complete set of all weights and measures,” to be used in custom houses and delivered to each state, with the goal of establishing a “uniform standard of weights and measures . . . through[out] the United States.”²⁴ Through this action, Congress indirectly adopted a system based on the traditional English units of weights and measures.

Congress has acquiesced in, though never formally authorized, use of the traditional English system of weights and measures in non-business activities. In 1866, Congress authorized but did not mandate use of the metric system.²⁵ In 1975, Congress adopted the metric system as the “preferred system” for trade and commerce.²⁶ The Office of Weights and Measures within the Commerce Department’s National Institute of Standards and Technology publishes standards for both English and metric weights and measures.²⁷

Judicial Precedent

There is very little judicial precedent about the Weights and Measures Clause. There has been litigation over whether states can define standard measures for trade purposes in the absence of congressional regulation. The Supreme Court has never explicitly held that the states have this power. Massachusetts State Grange v. Benton (1926) upheld the state’s daylight savings act.²⁸ Justice Oliver Wendell Holmes’s majority opinion suggested that the state did have this power. In 1855, Justice Robert Cooper Grier, while riding circuit, was perhaps more dubious. He found that “any interference of state legislation to change . . . the standard of weights” is “injurious.”²⁹ Justice Joseph Story, writing in his Commentaries, suggested that the states could fix weights and measures in the absence of action by Congress.³⁰

1. 1 Blackstone 273–74. ↩︎
2. Articles of Confederation, art. IX, § 4. ↩︎
3. 29 J. Cont. Cong. 499–500 (July 6, 1785). ↩︎
4. 2 Farrand’s 136. ↩︎
5. Id. at 143, 159, 167. ↩︎
6. Id. at 177. ↩︎
7. Id. at 182. ↩︎
8. Id. at 308. ↩︎
9. Louis A. Fischer, History of the Standard Weights and Measures of the United States, in 1 Bull. of the Bur. of Standards 365, 365 (1905). ↩︎
10. Message from George Washington to the United States Senate and House of Representatives (Jan.8, 1790), https://perma.cc/968H-SJYN [hereinafter Washington Message]. ↩︎
11. Thomas Jefferson, Plan for Establishing Uniformity in the Coinage, Weights, and Measures of the United States (July 4, 1790), https://perma.cc/39V8-7QYV. ↩︎
12. Sarah Ann Jones, Weights and Measures in Congress: Historical Summary Covering the Period of the Continental Congress to and Including the Adoption of the Joint Resolutions of 1836 and 1838, 3–5 (1936), https://perma.cc/6PDH-8L95. ↩︎
13. Washington Message, supra. ↩︎
14. 1 Stat. 246, 248. ↩︎
15. 1 Stat. 250. ↩︎
16. Act of Mar. 2, 1799, ch. 22, § 21, 1 Stat. 627, 643. ↩︎
17. Fischer, supra at 367. ↩︎
18. James Madison, Annual Message to Congress (Dec. 3, 1816), https://perma.cc/B3XA-XPBX. ↩︎
19. Jones, supra at 9. ↩︎
20. John Quincy Adams, Report Upon Weights and Measures (1821), https://perma.cc/LPG3-A8ES; Jones, supra at 9–11. ↩︎
21. Jones, supra at 14. ↩︎
22. S. Jour., 21st Cong., 1st Sess. 342 (May 29, 1830). ↩︎
23. 12 Reg. of Debates in Cong., 24th Cong., 1st Sess. app. xix (1836). ↩︎
24. Jones, supra at 16. ↩︎
25. 14 Stat. 339. ↩︎
26. 89 Stat. 1007. ↩︎
27. OWM Background & History, U.S. Dep’t of Commerce, Nat’l Inst. of Standards & Technology, Off. of Weights & Measures (Feb. 7, 2025), https://perma.cc/2LAE-2MVD. ↩︎
28. 272 U.S. 525 (1926). ↩︎
29. The Miantinomi, 17 F. Cas. 254, 256 (C.C.W.D. Pa. 1855). ↩︎
30. 3 Story’s Commentaries § 1117. ↩︎