Robert J. Pushaw (Pepperdine University – School of Law) has posted Obamacare and the Original Meaning of the Commerce Clause: Identifying Historical Limits on Congress’s Powers (University of Illinois Law Review, Vol. 2012, No. 1703, 2012) on SSRN. Here is the abstract:
Recently, Akhil Amar and Jack Balkin revived the idea that the exercise of unbridled Commerce Clause power is consistent with its original meaning. They assert that, in the eighteenth century, the word “commerce” meant “intercourse” — all interactions, not merely economic but also social and political. In this article, Professor Pushaw argues that the historical conclusions of Professors Amar and Balkin are hardly the most logical ones that can be drawn from the evidence. Drawing upon his prior work with Grant Nelson, wherein they compiled abundant historical documentation on the usage of “commerce,” Pushaw demonstrates that the Framers and Ratifiers most likely understood “commerce” as including only commercial interactions — voluntary sales of products and services and related activities intended for the marketplace. Furthermore, contrary to the assertions of Amar and Balkin, the Constitution’s drafters refused to grant Congress general legislative authority to enact any laws it deemed in the national interest or of interstate concern (the tentative Virginia Plan approach). Instead, they restricted Congress by enumerating its powers, thereby leaving all powers not listed to the states or the People (i.e., beyond the reach of any government, the better to promote freedom). It is this vision of popular sovereignty, limited government, federalism, and liberty that structures our Constitution.
Part I of the article examines the Commerce Clause’s original “meaning” (the ordinary definition of its words), “intent” (its drafters’ purposes), and “understanding” (the way its Ratifiers and early implementers comprehended it). Part II describes how the Supreme Court initially embraced this conception of “commerce,” abandoned it after Reconstruction in favor of a narrow definition that confined Congress to regulating only trade and transportation, and invented the vacuous “substantially affects” test in the late 1930s. Part III illustrates the practical consequences of adopting different approaches to the Commerce Clause in the context of the Patient Protection and Affordable Care Act (“ACA” or “Obamacare”), which imposes an “individual mandate” on Americans to purchase health insurance.