On Friday and Saturday, I will be participating in a symposium on Jack Balkin’s new book, Living Originalism. In my conference paper, Jack Balkin’s Interaction Theory of ‘Commerce’, I criticize his originalist analysis of “commerce” in the Commerce Clause. My paper is now uploaded to SSRN and can be downloaded here. Here is the abstract:
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 movement of things or persons, and did not include such productive economic activity as manufacturing or agriculture, much less all social interaction.
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