Which has priority in construing and applying the Constitution? The text of the Constitution as ratified? The record of the debates in Congress and before the public in the Federalist Papers and other published contemporaneous writings? The private letters and comments of drafters and participants? Law commentaries in the first generation after the Constitution was ratified?
Much mischief can be done when priorities and sources are scrambled and the text is not accorded the greatest weight. Consider the First Amendment, which not only forbids laws respecting an establishment of religion, but also forbids laws impeding the free exercise of religion. In the text of the First Amendment, the two are in balance. In practice though, modern federal courts have embraced as dogma that there must be a "wall of separation" between church and state.
One searches in vain though for the now totemic phrase "wall of separation" in the First Amendment, in the debates that preceded its adoption, and in other public writings of the era as to what the First Amendment meant. The phrase "wall of separation" appears though in a private letter from Thomas Jefferson to the Danbury Baptists in 1802.
Modern Supreme Court jurisprudence emphasizes the "wall of separation" to the point that the free exercise of religion is ignored. Can public school children be released for optional religion classes on school grounds as provided by the denomination of their parents' choice?
That sounds like the free exercise of religion to me, but not to the Supreme Court, which regards release time as contrary to the "wall of separation" between church and state. Jefferson's metaphor has effectively consumed half of what the First Amendment expressly provides as to religion.
The problem with the commerce clause is that the provision is clear in concept but not in application. In Gibbons v. Ogden in 1824, the US Supreme Court embraced an expansive view of the commerce clause:
If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations and among the several states is vested in Congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States.
Thus an expansive view of the commerce clause appears in the early years of the Republic in a generation far closer than we are to the framing and adoption of the Constitution. Did the Supreme Court get the commerce clause right in 1824 in interpreting it in an expansive manner? I am hard put to think that we today know better.
There's way too much chasm between the writings of Madisn and Story and the concrete reality of what the New Deal Commerce Clause has produced for me to buy that this is just quibbling over some interpretive details.
If it walks like a duck, and quacks like a duck it's a duck, and this duck has a name - usurpation. Sophistry isn't going to pretty it up any.