I just can't agree to your reading. Such an unrestricted conception of commerce, without even delving into the "rights" of a fictional entity, could and would eventually be used to leverage abuses against other rights of the individual too numerous to list. I dare say feudalism would not be an inconceivable outcome.
I would fully support a tightening of the language regarding commerce, including by amendment, to reflect the fact that engaging in commerce does affect circumstances outside ones private property, and as such is every bit as legitimately regulated as the interactions between individuals.
As a matter of practice, no such clarification is needed.
There must be some dividing line between the sanctity of each man's "vine and fig tree" and what may be coerced from individuals by engaging in commerce.
If such a dividing line is not strictly Constitutional, it should be made so.
CONCLUSION
The most persuasive evidence of original meaning--statements made during the drafting and ratification of the Constitution as well as dictionary definitions and The Federalist Papers--strongly supports Justice Thomas's and the Progressive Era Supreme Court's narrow interpretation of Congress's power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."
"Commerce" means the trade or exchange of goods (including the means of transporting them); "among the several States" means between persons of one state and another; and the term "To regulate" means "to make regular"--that is, to specify how an activity may be transacted--when applied to domestic commerce, but also includes the power to make "prohibitory regulations" when applied to foreign trade.
In sum, Congress has power to specify rules to govern the manner by which people may exchange or trade goods from one state to another, to remove obstructions to domestic trade erected by states, and to both regulate and restrict the flow of goods to and from other nations (and the Indian tribes) for the purpose of promoting the domestic economy and foreign trade.
To determine the constitutionality of any particular legislation and evaluate judicial applications of the Commerce Clause, however, we must also consider the meaning of the Necessary and Proper Clause.
If the original meaning of "proper" in this clause was, as Gary Lawson and Patricia Granger have shown, that the end or purpose of a law must be within the jurisdiction of Congress to enact, a narrow conception of the Commerce Clause limits Congress to the end or purpose of making regular the trade between the states.
Legislation that is actually for a different purpose cannot be upheld as "proper."
As Chief Justice John Marshall stated in McCulloch v Maryland, "should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government, it would become the painful duty of this tribunal . . . to say that such an act was not the law of the land."
And, as I have argued elsewhere, if the Necessary and Proper Clause requires an assessment of "necessity" in which legislation is scrutinized to determine if there is adequate fit between means and ends, then the Congress must show, at minimum, it has chosen means that actually conduce to an enumerated end.
Even John Marshall, who construed the degree of necessity required by the clause more loosely than I think is warranted, allowed that the means chosen must be "plainly adapted" to a "legitimate" end that is "within the scope of the constitution."
In which case, the only "appropriate means" are those that are actually incidental to making regular trade between the states.
This all assumes, of course, that a court is bound by the original meaning of the Commerce Clause. I have argued elsewhere why it should be, so long as it professes a commitment to a written constitution. Moreover in recent years there has been a marked movement on the part of constitutional theorists in the direction of original meaning, at least to provide the starting point of constitutional analysis -- in which case, the content of the starting point surely matters. But this is an argument for another place.
What has been established here is that those who have claimed that the original meaning of the Commerce Clause was narrow are right and their critics are wrong.
papertyger wrote:
I just can't agree to your reading. Such an unrestricted conception of commerce, without even delving into the "rights" of a fictional entity, could and would eventually be used to leverage abuses against other rights of the individual too numerous to list.
As you can see, Barnett comes to the same conclusion. The commerce clause is "narrow" and restricted.
Barnetts paper does not lead one to conclude that individual rights can be abused.
I dare say feudalism would not be an inconceivable outcome. I would fully support a tightening of the language regarding commerce, including by amendment, to reflect the fact that engaging in commerce does affect circumstances outside ones private property, and as such is every bit as legitimately regulated as the interactions between individuals.
As a matter of practice, no such clarification is needed. There must be some dividing line between the sanctity of each man's "vine and fig tree" and what may be coerced from individuals by engaging in commerce.
If such a dividing line is not strictly Constitutional, it should be made so.
There is such a dividing line, and Barnett is one of its foremost advocates in his book:
Restoring the Lost Constitution - Presumption of liberty
http://en.wikipedia.org/wiki/Presumption_of_liberty