Commerce Among the States

Rejecting Balkin’s view that constitutional philosophies should be judged by their accommodation of the New Deal and Barnett’s view that a “presumption of liberty” should undergird constitutional construction. Arguing instead that the original meaning of the clause “should be sought in the narrower dimension of the specific problem that it was intended to address: restrictions on trade imposed by the states to favor residents over those of other states.”

Responding to Balkin and arguing that he is wrong to reduce ‘commerce’ to ‘intercourse,’ ‘intercourse’ to ‘interaction,’ and ‘interaction’ to ‘affecting.’”

Rejecting Gonzales v. Raich’s constitutional conflation of “regulation” and “prohibition” and arguing that Congress’ power to regulate interstate commerce does not include the power to prohibit it.

Arguing that the Affordable Care Act’s individual mandate, as a regulation of inactivity rather than activity, was not a permissible exercise of Commerce Clause power because regulation requires a predicate activity.

Arguing that the commerce power extends to “voluntary market-oriented activities, but not mere social interactions” and contending that the Affordable Care Act’s individual mandate is invalid as regulating an involuntary market activity.

Arguing for “intercourse” construction of “commerce” that embraces, among other things, “travel, social connection, or conversation,” and for construction of “among the several states” embracing “interactions that extend in their operation” and interactions that extend in their effects” beyond the several states.

Providing originalist defense of the Dormant Commerce Clause based, in part, on a view of the Commerce Clause as a vesting exclusive power over interstate commerce in Congress.

Granting that a metaphorical “social interaction” meaning of “commerce” existed at the time of the Founding but arguing that the Commerce Clause uses the traditional “mercantile trade and certain incidents” meaning of the word.

Arguing that “the commerce power authorizes Congress to regulate problems or activities that produce spillover effects between states or generate collective action problems that concern more than one state.”

Arguing that the original meaning of the Commerce Clause granted Congress “a plenary power to regulate all private transactions in the nation.”

Examining Founding-Era legal sources and concluding that the legal meaning of “commerce” was identical to the lay meaning: it embraced mercantile “exchange, traffic, or intercourse,” including “buying, selling, and certain closely related conduct, such as navigation and commercial finance.”

Arguing that “commerce” refers “to all forms of intercourse in the affairs of life, whether or not narrowly economic or mediated by explicit markets.”

Arguing that “the evidence of original meaning is overwhelming” that “commerce” refers to trade and exchange and to transportation for those purposes.

Noting confusion between vagueness and ambiguity in interpreting the meaning of “commerce” and analyzing new evidence (including a comprehensive collection of Pennsylvania Gazette newspapers) in concluding that the original meaning of commerce, as used in the Commerce Clause, was a narrow one.

Arguing that originalists should accept a “presumption of intrasentence uniformity” in interpreting the words surrounding “foreign,” “among the several States,” and “Indian” in the tripartite Commerce Clause.

Arguing that proponents of a narrow reading of the Commerce Clause fail to take account of evidence of a broader view; of difficulties in ascertaining a single coherent meaning; and of the incompatibility of much Supreme Court precedent with the narrow reading.

Exploring original meaning of the Commerce Clause, noting difficulties in returning to faithful judicial enforcement of that meaning, and arguing that courts should decide issues construing the Clause with a view to the its federalism-protecting purpose.

Arguing that “commerce,” “among the several States,” and “regulate” were meant in their broad senses.

Scrutinizing each use of the word “commerce” in the records of the Constitutional Convention, the ratification debates, and the Federalist Papers, and concluding that this evidence, along with evidence of the original meaning of “to regulate” and “among the several states,” supports a narrow reading of the Commerce Clause limited to regulation (but not prohibition) of interstate trade and exchange of goods and transportation for that purpose.

Arguing that the Commerce Clause allows Congress to regulate “commerce”—defined as the “voluntary sale or exchange of property or services and all accompanying market-based activities, enterprises, relationships, and interests”—which “implicates commerce in more than one state.”

Arguing that the original meaning of “commerce” is the “interchange of goods by one State with another” and that the meaning of “among the several States” did not permit federal intervention in intrastate activity.

Arguing that the text and history of the Commerce Clause, along with acquiescence in the Dormant Commerce Clause doctrine, suffice to justify that doctrine.

Concluding that “the expansive construction of the clause accepted by the New Deal Supreme Court is wrong, and clearly so, and that a host of other interpretations are more consistent with both the text and the structure of our constitutional government.”

Arguing that the Dormant Commerce Clause doctrine has no support in the text of the Constitution and “undermines the carefully structured federal balance embodied in the text.”