Jack Balkin

Jack Balkin’s “Commerce” Published in Michigan Law Review

Matthew L.M. Fletcher

Here.

Our prior discussion of this article, along with several very interesting comments, is here.

Here is the abstract:

This Article applies the method of text and principle to an important problem in constitutional interpretation: the constitutional legitimacy of the modern regulatory state and its expansive definition of federal commerce power. Some originalists argue that the modern state cannot be justified, while others accept existing precedents as a “pragmatic exception” to originalism. Nonoriginalists, in turn, point to these difficulties as a refutation of originalist premises.

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Jack Balkin on the Indian Commerce Clause

Matthew L.M. Fletcher10 Comments

Jack Balkin’s new paper, “Commerce,” (noted here at Legal Theory Blog and of course here), has very interesting commentary on the Indian Commerce Clause.

In short, Prof. Balkin argues that the word “commerce” in the Constitution means more than mere trade or economic activity, but instead should be read to mean all “interaction.” He discusses the Indian Commerce Clause at length as an example of how the Framers and the original interpreters of the Constitution understood “commerce” to mean much more than mere trade or economic activity. Followers of Indian law may recall that this has significant import to Indian affairs, as the Court in United States v. Kagama asserted that the Indian Commerce Clause could not be a source of Congressional authority to enact the Major Crimes Act, a largely discarded view that Justice Thomas attempted to resurrect in his United States v. Lara concurrence.

Of note on pages 30-31, Balkin cites the 1790 Trade and Intercourse Act as evidence of this broader interpretation and understanding, something many others from Bob Clinton and Akhil Amar have done as well:

One of the first things the new government did, for example, was to regulate its interactions with the Indian tribes, through a series of Trade and Intercourse Acts beginning in 1790. The title of these acts was apt: they not only required licenses for trade with Indians, but also punished “any crime upon, or trespass against, the person or property of any peaceable and friendly Indian or Indians.”78 These crimes did not necessarily involve trade or even economic activity; they could involve assault, murder, or rape. Note as well that even if the point of regulating these crimes was because of their likely effects on trade with the Indian tribes, the activities regulated were themselves not economic. And note finally that the 1790 and 1793 Trade and Intercourse Acts could not be justified as legislation designed to enforce treaties; they applied to crimes against Indians, whether or not they had signed treaties with the United States.79

The last sentence is a crucial point, as some conservative original meaning scholars have suggested that the 1790 Act was broader than trade or economic activity because it was intended to implement treaty language, thereby defeating whatever evidence the 1790 Act represented in the original meaning of the commerce clause. Continue reading →