[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.

[inquest]

We do not agree as to the meaning of Madison's writings.

No, it's more like, KenH understands Madison's plain languange, and you don't.

If someone says, "If taken literally, this clause would mean such-and-such. YET...", most people would understand the "yet" to indicate that it's probably not to be taken literally.

If Madison wanted to say that the same extent belonged to both, he wouldn't have bothered with the "if taken literally" disclaimer. He would have simply said, "Being in the same terms with the power over foreign commerce, the same extent belongs to it."

[Ken H]

We do not agree as to the meaning of Madison's writings.

Hopefully you've had a chance to reread the letter, as well as the replies on this thread which refute your flawed assertion.

The nub of the matter is that Madison saw the remedy as being appeals to Congress, not federal court intervention.

He saw Congress as the remedy to preventing and correcting injustices among the State.

However, that is altogether different from determining the proper extent of legislation by Congress. The Court may overturn Congress on I.8.3./I.8.18. legislation. Even Scalia says so.

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.

Again, Congress is not the sole arbiter of what is proper under I.8.3., and Madison never said or implied that it was.

[publiusF27]

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.

I reached a similar conclusion after a few discussions with paulsen. The commerce clause is indeed broadly written. Yet it is possible to draw lines. What is interstate, and what is not, what is commerce, what is not.

I disagree with you on intent. The text of the Constitution tells us almost nothing, except possibly that Congress has plenary power to expand the limits of federal authority by making some connection to actual or potential interstate commerce.

Yet if we read Federalist 45, we find the quotations noted previously:

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.

That seems to contradict the broad interpretation of "interstate commerce" we have today.

The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

That does too.

Homegrown machine guns, homegrown cannabis plants, certain California toads, assisted suicide, and so many others...all assimilated by the omnivorous commerce clause. They sure sound like "positive purposes of the general government" to me. It doesn't look like a federal government focused primarily on external concerns. It looks like one which is taking charge of "all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State."

When we have Congresscritters who will assert authority based on the idea that being near a school with a gun affects interstate commerce, it's way past time to revisit Wickard.