Monday, September 18, 2006

Very Brief Commerce Clause Thought

Still working on the paper, which should be published sometime this winter, and I just can't get the commerce clause off my mind-

I thought of an originalist argument today that throws the whole notion of activities with a substantial affect on interstate commerce as being a permissible subject of commerce clause regulation into question- The Bankruptcy Clause, Article 1, Sec. 8, Clause 4. Bankruptcy is clearly an activity with a substantial affect on interstate commerce, yet the framers specifically made a separate bankruptcy clause. If bankruptcy would be covered under the commerce clause, why make a separate clause? I suppose this argument could be made in regards to any number of Sec. 8 enumerated powers, but this only strengthens the position that the commerce clause today has been stretched ridiculously far beyond its original meaning.


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