The Commerce Clause

Interesting analysis by Aaron Worthing on Patterico:

So it has to be commerce, and it has to be “among” the states, i.e. interstate.  And that is even more restrictive than it sounds to our modern ears.  For instance in Jacob’s New Law Dictionary, published in 1783, the term commerce was limited to the moving of goods—which doesn’t include medical services or insurance at all.  But the courts have read that limitation out of the constitution.  The clause also meant that it had to be interstate trade, but the courts long ago ruled that wholly intrastate trade was included by invoking the necessary and proper clause, thus implying into existence a power that was specifically denied to Congress.  And in Wickard v. Filburn they defined commerce to mean making a product and not selling it in a market.  And now they want to claim that means doing nothing at all.  They want to snip the last thread of meaning from the limitations in the commerce clause.  It would fit a certain “progression” in our case law, but if even this thin limitation was denied, then this provision would become literally limitless, making the entire exercise of limiting the scope of that clause pointless.  The Supreme Court is loath to render any clause of the constitution pointless.

In short, liberals have argued away every single aspect of the commerce clause to the point where the founding fathers might as well left it out.

And they wonder why America is divided.

One very good paragraph in a very good (and long) fisk.

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