In my paper, Jack Balkin’s Interaction Theory of “Commerce,” I reply to his originalist analysis of the Commerce Clause that he offered in his Michigan Law Review article, which is based on a chapter of his forthcoming book, Living Originalism. Since my paper was presented at a symposium on his book, Jack has revised his manuscript to respond to my critique. Consequently, I have revised my paper to reflect his changes, which have still not persuaded me that the original meaning of “commerce” is best understood as “interaction.” I have uploaded the new version of my paper to SSRN here. If you read the previous version, it has probably not changed enough to justify downloading again. But if you have not yet read it, and are interested in the original meaning of the Commerce Clause, here is the abstract:
In his book, Living Originalism, Jack Balkin proposes what he calls the “interaction theory” of the original semantic meaning of the word “commerce” in the Commerce Clause. He claims that “commerce” meant “social interaction.” In this article I show why this theory is wrong due to errors of commission and omission. Balkin is wrong to reduce “commerce” to “intercourse,” “intercourse” to “interaction,” and “interaction” to “affecting.” This triple reduction distorts rather than illuminates the original meaning of “commerce.” And Balkin omits from his discussion the massive amounts of evidence of contemporary usage — along with dictionary definitions of “intercourse” — establishing that “commerce” referred to the trade or transportation of things or persons, and did not include such productive economic activity as manufacturing or agriculture, much less all social interaction. In this article, I also reply to Balkin’s criticisms of my book, Restoring the Lost Constitution. I show how his heavy reliance on Gunning Bedford’s resolution in the secret Philadelphia convention is misplaced in a discussion of the original meaning of the Commerce Clause.
For another first-rate critique of Balkin’s Michigan Law Review article, see Commerce in the Commerce Clause: A Response to Jack Balkin by Robert G. Natelson & our own David Kopel
However misguided I think his interpretation of “commerce,” I believe Jack’s new book to be a masterpiece. It is the most important work of constitutional theory since Ronald Dworkin’s Law’s Empire. Living Originalism won’t be out until the fall, but you can pre-order it here.