Here.
Of note, here is the part of the response directed toward the Indian Commerce Clause:
The Indian Intercourse Act. Plentiful Founding-Era evidence, including enactments of the Confederation Congress and state legislatures, show that “Commerce with the Indian tribes” referred to mercantile trade with the Indians and certain tightly related activities, such as the licensing of and control over the behavior of merchants.[19]
Balkin enlists the Indian Intercourse Act of 1790 as exemplifying a broad meaning of the Indian Commerce Clause. Because the 1790 act included some criminal provisions (as trade regulations often did), Balkin argues that the meaning of “commerce” extended far beyond trade.
The Indian Intercourse Act was adopted after the Constitution had been ratified, and, like the Sedition Act a few years later, is not necessarily a correct guide to public understanding of the Constitution at the time of ratification. However, if the act had been adopted pursuant to the commerce power, and before the holdouts of North Carolina and Rhode Island had ratified the Constitution, the act would help the Balkin thesis very little, for the law’s criminal provisions were typical of contemporaneous trade regulation-designed to protect trade by punishing merchants who entered Indian territory without authorization.[20]
In fact, however, the law was an exertion of the treaty power, not the commerce power. It was adopted on the recommendation of President Washington “for extending a trade to [the Indians] agreeably to the treaties of Hopewell.”[21] Several years ago, one of us discussed this background, including an explanation for why the law extended beyond the signatory tribes.[22]
Turtle Talk 