Weights and Measures

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

Article I, Section 8, Clause 5

The Articles of Confederation was the immediate source that gave the central government "the sole and exclusive right and power of...fixing the Standard of Weights and Measures throughout the United States." Article IX, Section 4. More remotely, the power to establish national standards of weights and measures resided in the English Crown or Parliament from the late eleventh century, although it appears that official standards were frequently ignored throughout England. The phrase itself dates from the late fourteenth century.

By the time of the Constitutional Convention, it appears that the Weights and Measures Clause was not an attempt to remedy a situation in which various standards obtained in various parts of the country. There already existed a customary uniformity. Rather, the purpose in granting this power was to facilitate domestic and international commerce by permitting the federal government to adopt and enforce national measurement standards based upon the prevailing consensus. The clause excited no controversy among the Framers or in the ratifying conventions.

During their respective tenures as Secretary of State, Thomas Jefferson and John Quincy Adams, as well as a House Committee, produced extensive studies calling for congressional adoption of uniform standards. The reports by the House and Adams rejected adopting the metric system of France and proposed no federal enforcement mechanism, leaving the application of the standards to the executives of the several states. Nonetheless, Congress did not adopt any systems of weights or measures, although the Treasury Department established standards for the pound, yard, gallon, and bushel for customs purposes.

In the face of congressional inaction, many states defined standard measures for trade purposes. No Supreme Court case has explicitly held that the states are free to establish such standards in the absence of congressional action, although Justice Oliver Wendall Holmes intimated as much in Massachusetts State Grange v. Benton (1926).

Congress has acquiesced in (though never authorized) the use of the traditional English system of weights and measures in nonbusiness activities. In 1866, Congress authorized, but did not mandate, the use of the metric system and, since 1975, the metric system has been the "preferred system" for trade and commerce. The National Institute of Standards and Technology of the Department of Commerce periodically publishes standards for English and metric weights and measures.

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Eric A. Chiappinelli
Professor of Law
Creighton University School of Law