But construing the appearance of “Commerce” in the Commerce Clause to mean “the entire economy” or “all human relationships” seems inconsistent with its appearance in the Port Preference Clause, where the word is employed in a narrow mercantile sense. Normally we presume that when the same expression appears in more than one place in the same document, its meaning remains constant. One problem with the hypothesis is that it does not fit well textually within the Constitution as a whole. The mega-Commerce Clause hypothesis might seem implausible if not for the standing of its sponsors and its congeniality with dominant academic political leanings. The label “hypothesis” reflects its status as a suggestion based on, at least so far, fairly scanty evidence. In this article, I refer collectively to both non-traditional views as the “mega-Commerce Clause hypothesis.” The phrase “mega-Commerce Clause” communicates its effect: It converts a moderately broad, specific congressional power into a grant more sweeping than any other in the Constitution. Under this view, the Constitution empowers Congress to regulate all social interchange generating externalities across jurisdictional lines-subject only to the Constitution’s itemized limits, such as the Bill of Rights. They argue that during the 18th century, the word “commerce” was interchangeable with the word “intercourse,” and that either could denote all social relationships. They contend that, as understood by the Founders, “Commerce” actually denoted human interactions of all forms, economic and non-economic. Two currently-active scholars, Jack Balkin and Akhil Amar, go further. The effect of adopting this view is to authorize, even without resort to the Necessary and Proper Clause, congressional regulation of all economic transactions triggering interstate externalities-which for practical purposes means the entire American economy. Pushaw published an article agreeing with Crosskey. In 1953, William Winslow Crosskey elaborated this position, and in 1999 Grant S. Thus, in 1937, Walton Hale Hamilton and Douglas Adair argued that the Founders understood “Commerce” to comprehend all economic relationships, including production as well as trade. Since that time, however, several writers favoring a more interventionist federal government have claimed that the Founders understood “Commerce” to be a much more comprehensive term. The Constitution grants Congress power to “regulate Commerce with foreign Nations, among the several States, and with the Indian Tribes.” For the Constitution’s first 150 years, it generally was accepted that “Commerce” referred to mercantile trade and its many incidents. Views of “Commerce”: Traditional and “Mega”
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