[Rockingham]

I am an adamant originalist, but even if two centuries of case law were tossed aside as to the commerce clause, originalism yields little in the way of useful decisional principles for today's controversies.

The world of the Framers was a world without electricity or motor vehicles and with roads so wretched that moving people or substantial cargo more than a few miles was a matter of water transport. The commerce clause was originally applied to prohibit state tolls and barriers to interstate commerce and to empower federal regulation and protection of the waterborne commerce of the day. Do you propose to limit the commerce clause to that alone -- or do you mean it to apply to commerce broadly as the Framers intended?

Today, due to modern communications and transportation, commerce no longer can be easily distinguished between interstate and intrastate aspects. When anything and everything is or can be in interstate commerce, how do draw factually valid distinctions between interstate and intrastate commerce?

The results that you want -- that some things are beyond the reach of federal power -- is better sought through the means that I suggest: a case by case approach under federal preemption law that finds some things beyond the federal commerce power based on revived "dual federalism" reasoning. My take is that guns in schools are a local matter, but marijuana can be suppressed by the federal government based on the commerce clause. On different reasoning, that is consistent with the two most recent Supreme Court commerce clause decisions.

Specifically, where do you find fault with my analysis, either here or in my earlier post?

[inquest]

Today, due to modern communications and transportation, commerce no longer can be easily distinguished between interstate and intrastate aspects.

Example of what you mean by this? And regardless, if modern conditions make it impossible to govern to the satisfaction of the people while adhering to the Constitution, there's an amendment process. But to simply say that following the stated words of the Constitution is too inconvenient, therefore we'll just ignore them, is to disregard the whole point of having a Constitution.

When anything and everything is or can be in interstate commerce, how do draw factually valid distinctions between interstate and intrastate commerce?

Anything and everything? I go down to the local gun shop and buy a gun. Not insterstate commerce. Not in 1788. Not in 2005.

[TKDietz]

"Today, due to modern communications and transportation, commerce no longer can be easily distinguished between interstate and intrastate aspects. When anything and everything is or can be in interstate commerce, how do draw factually valid distinctions between interstate and intrastate commerce?"

Is the item being traded across state lines? At the point that it is being traded or even when the deal to trade it across state lines is being made, that is interstate commerce. If it is being sold out the door of a local shop, that is not interstate commerce. Even if the item came from another state, and is then being sold over the counter to a buyer standing there with cash in hand, that is not interstate commerce and should not be subject to federal regulation. It was only interstate commerce when the item was traded across state lines. Furthermore, it does not make it interstate commerce just because an item sold or manufactured might possibly enter the stream of interstate commerce. The feds can only regulate actual interstate commerce. A strict originalist you are not.

[Know your rights]

My take is that guns in schools are a local matter, but marijuana can be suppressed by the federal government based on the commerce clause.

Joe grows pot in his back yard and sells some to his next-door neighbor ... how is that not a local matter?

[ctdonath2]

how do draw factually valid distinctions between interstate and intrastate commerce?

The state borders are clearly marked (if not, check your GPS and mapping software - high-tech has made it easy to find 'em). If crossed, interstate; otherwise, intrastate.

Simple.