[Ken H]

The larger issue is what Madison would make of today's use of the federal commerce clause.

The issue is your misunderstanding of Madison's letter to Cabell. You claimed that Madison viewed the power to regulate foreign and interstate commerce as coextensive, and that is just not so. Reread carefully and you'll see that I'm correct.

I do not think Madison would call the current application of the commerce clause unconstitutional.

Huh? You just got through saying:

The Framers of the Constitution and their generation did not intend for the vast scope of federal power today, much of it based on the commerce clause. You also said Wickard was not consistent with original intent. Madison himself said I.8.3. as applied to interstate commerce was not intended for the positive purposes of the general government.

I'm having trouble seeing the consistency in your positions.

[Zon]

Regard original intent. No business can impose a tax on another business, only a state government could, unconstitutionally, attempt to impose a tax on interstate commerce/business.

[Know your rights]

You claimed that Madison viewed the power to regulate foreign and interstate commerce as coextensive, and that is just not so. Reread carefully and you'll see that I'm correct.

You are correct. I'm afraid Rockingham sees what he wants to see.

[Rockingham]

We do not agree as to the meaning of Madison's writings. The nub of the matter is that Madison saw the remedy as being appeals to Congress, not federal court intervention.

As for "original intent," there is a useful parallel with contract law. Contracts are applied according to their terms despite the supposed intent of the parties. Similarly, what Madison and the Framers actually wrote in the Constitution governs, with originalism used to better elucidate the meaning of what they wrote, not as a license for judges to remake the Constitution to be a bulwark against evils that they would shrink from.

Recall the phrase "separation of church and state." It does not appear in the Constitution but in a letter written by Jefferson decades later. In a perverse form of originalist reasoning, Warren era courts used the phrase to build an entire body of constitutional jurisprudence that is at odds with the terms of the Constitution and the true sense of the First Amendment. Similar perversions were worked upon large areas of constitutional law.

The task of genuine originalism is to begin with the Constitution as written and try to understand it in the context of the founding era. But letters and writing of the Framers should not be preferred to the text of the document itself. On that basis, the commerce clause is so broadly written that, as Madison suggests, appeals for limits are properly directed at Congress, not the courts.