For where desire, celestial, pure desire,
Hath taken root, and grows, and doth not tire,
There God a commerce states, and sheds
His secret on their heads.

Henry Vaughan, “The Star”

“And how does your commerce go, you strange guardian of the past?”

G.K. Chesterton, The Napoleon of Notting Hill

My partisanship post has blossomed into an extensive discussion of original intent, interpretation and the commerce clause. Maybe we could use a little more scholarship to go with that. (Who knows?)

Randy Barnett and Jack Balkin are big in this area, and their major papers are freely available on the web. (Here’s Balkin’s major statement, outside of his book. Here’s an old one by Barnett that makes his general framework clear. And here’s a recent response by him to Balkin on commerce.) But let me start with “Rethinking the Commerce Clause”, by Nelson and Pushaw. It’s not free online, but I want just to quote the opening: [click to continue…]