[Rockingham]

I think that you have simply returned to the main disagreement as to the scope of the commerce power. Yet let us not allow the heat of argument to lead us to overstate our differences.

To return to Madison's letter to Cabell (posted at my #67 above), we seem to be in agreement with Madison that the commerce clause was broadly written but originally seen as mostly a negative against states interfering with the flow of commerce between the states. Where we differ is whether the federal courts should be called on to supply terms of direct restraint against exercise of the federal commerce power that are absent in the text of the Constitution itself. With Madison, I am inclined to see the remedy as being with Congress rather than the courts. (See quote from letter to Cabell below).

Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it. Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged.

[tacticalogic]

I am inclined to see the remedy as being with Congress rather than the courts. (See quote from letter to Cabell below).

That only makes sense if you hold the General Government to be only the legislative branch, and excluding the executive and judiciary. You seem to be trying to agree with a proposition not made.

[robertpaulsen]

In this letter, Madison is comparing the Commerce Clause power with foreign nations (discussed in his prior letter to Cabell) to the Commerce Clause power among the several states. There are two differences he wishes to point out.

One, although both powers mention "regulate commerce", only Congress may regulate commerce with foreign nations. This is done for the positive purposes of the general government.

Two, re: interstate commerce, it was envisioned that the states themselves would resolve injustices through the courts, rather than involving Congress in every dispute where, alone, the power could have been lodged (as with the commerce power with foreign nations).

This letter in no way implies that Congress cannot or should not regulate interstate commerce -- just that Madison didn't foresee Congress doing a lot of it. Now that Congress is doing more of it (constitutionally, I might add), posters like inquest are uncomfortable with this "expanded" power (which it is not) and look to the USSC to reign them in since the laws are popular and voters aren't interested in doing so.

Call it "libertarian judicial activism".

[inquest]

Where we differ is whether the federal courts should be called on to supply terms of direct restraint against exercise of the federal commerce power that are absent in the text of the Constitution itself. With Madison, I am inclined to see the remedy as being with Congress rather than the courts.

So Congress is to provide restraint against the exercise of the federal commerce power? It's Congress that's exercising the federal commerce power in the first place. So you're saying that Congress is supposed to be the only restraint on itself? That's certainly not what Madison was saying.

[Know your rights]

In the parlance of the era, "several states" refers to the states as a whole.

No, almost the exact opposite. Think of the phrase "jointly and severally liable". Do you know what the "severally" means in that phrase? It means separate from one another. So "commerce among the several states" means among the states considered as seprate entities from each other. In other words, interstate commerce.

In the context of the Constitution, the word "several" has absolutely nothing to do with quantity - either directly, indirectly, or tangentially.

I think that you have simply returned to the main disagreement as to the scope of the commerce power.

No, hes has soundly rebutted your claim that "In the parlance of the era, 'several states' refers to the states as a whole."