Health insurance is not ‘commerce’

From 1789 until 1944, the Supreme Court adhered to the original understanding of the Constitution that insurance is not “commerce” that is subject to the congressional power to regulate interstate commerce. A 1944 opinion by Justice Black, Southeastern Underwriters, reversed that approach, while claiming to base its opinion on original understanding. In an article in the National Law Journal, Rob Natelson and I argue that the Southeastern Underwriters should be over-ruled.