Commerce with Foreign Nations

Describing the different purposes of the Foreign and Interstate Clauses in concluding that the former, but not the latter, included the power to prohibit commerce.

Arguing for a single meaning of “regulate” applicable to the Foreign, Interstate, and Indian Commerce Clauses and contending that congressional power in the three areas diverge not because “regulate” has multiple meanings but because “they serve different structural purposes that are reflected in the text.”

Arguing that the use of “with” rather than “among” in the clause implies nexus and “foreign sovereignty concern” limitations that in some circumstances make the Foreign Commerce Clause narrower than the Interstate Commerce Clause.

Arguing for divergent meanings of “regulate” in the Foreign and Interstate Commerce Clauses, allowing Congress to prohibit commerce in the former but not the latter.

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.

Drawing conclusions as to the purpose of the Foreign Commerce Clause, including presenting a nationally unified face in foreign trade.

Arguing that “[t]he axial position of foreign commerce in the Framers’ plan for government, ranking with war and peace in the litany of government tasks, suggests that the improvement of foreign trade through supranational adjudication would not have been viewed by the Framers as an inherently improper legislative objective of the federal government.”