Yet another “progressive” argument for an unlimited Commerce Power doesn’t add up


Rob Natelson
Tenth Amendment Center
October 25, 2011

As I’ve pointed out before in this column, there is a sort of cottage industry among “progressive” law professors that involves taking snatches of the Founding-Era record—or imagined snatches—to argue that the current overgrown federal government is really constitutional after all.

In past posts, I’ve reported on a misinterpretation of the Necessary and Proper Clause (Article I, Section 8, Clause 18) that was based on a failure to research the meaning of the Post Office Clause (I-8-7). I’ve also reported on misuse of an early sailors’ health care law to justify Obamacare.

Today’s entry is probably better known than either of those. It is based on a statute passed by Congress in July, 1790 entitled “An Act To Regulate Trade and Intercourse with the Indian Tribes.” One section of that statute provides for punishment of a white person who ventures into Indian country and commits a crime against an Indian. Some law professors argue that because this statute regulates “trade and intercourse,” it must have been passed under the Commerce Power. And because it punished garden-variety crimes against Indians in Indian country, the Founding-Era understanding of the Commerce Power must have been really broad.

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