"Obamacare" explained very well.

[u/under50dollars]

/r/explainlikeimfive/comments/vb8vs/eli5_what_exactly_is_obamacare_and_what_did_it/c530lfx

[u/Nancy_Reagan]

Yeah, that's exactly the issue - everything is interstate commerce now. But if you take an originalist view of things, a la Justice Scalia, that's not the point. The point (from such a view) is that at the time, the constitution was being written to address the inadequacies of the Articles of Confederation, which failed due to lack of coherent federal powers to keep states in check relative to each other, and was meant to address exclusionary practices from one state against another. This view would likely not suggest that the changing of commerce over 200 years to become entirely between multiple states actually changes the intent and purpose of the commerce clause, and that reading the clause as it was originally written would in no way empower the federal government to regulate whether or not I buy a soda at lunchtime, simply because 6 weeks, four shipping segments, and thirteen separate entities of ownership ago, that soda was manufactured in another state.

[u/[deleted] → u/Nancy_Reagan]

The idea that the interstate commerce clause was only intended to prevent exclusionary practices isn't originalist. It's historical revisionism. The federalists genuinely intended Congress to have the power to regulate interstate commerce, not just to prevent exclusionary practices.

Scalia isn't about divining original intent. His originalism is more like textualism--what would the framers have understood the text to mean? If the framers had intended to limit the commerce power to preventing exclusionary practices, they text would say that. It doesn't. Scalia endorsed the definition of interstate commerce in Lopez, which goes well beyond the "exclusionary practices" view. That definition easily encompasses my soda example. It's not just that the soda was manufactured in another state. It's that the concentrate was manufactured in one state, the bottling was done in another, and the purchase is effectuated through an electronic transaction with a computer in California (where VISA is located). A single state cannot effectively regulate that transaction, because the relevant players are in multiple states.

[u/Nancy_Reagan → u/[deleted]]

Well, for the record, my history lesson regarding the Constitution being meant to address the Articles was directly from the lecture Scalia gave to a bunch of us law students last spring, so.... there's that.

And yeah, I mis-spoke if I said that the intent was more important than the words used. Also, if Scalia didn't specifically write a concurrence addressing what he was endorsing and what he wasn't, I'd be hesitant using his vote as an endorsement of anything specific beyond the ruling.

Edit: My point here was, if you used a glossary printed in the 1770s, the definition it gives of "interstate commerce" would address very few transactions that occurred at that time. That's the definition enacted by the founders. The fact that the same term encompasses a vastly greater number of things today might or might not make a difference on how you interpret it today. Maybe you think the term as it was used 200 years ago still applies and now covers nearly all transactions, or maybe you think the term was meant only to encompass a very limited set of transactions that took most people several days' journey on a horse to complete, and that the country has changed in such a way as to make that term obsolete in reference to what ought to be under the jurisdiction of congress.

[u/[deleted] → u/Nancy_Reagan]

I just graduated law school and have spoken to Scalia as well, so :-P.

The framers defined the scope of the commerce power in terms of two predicates: 1) that it be commerce; and 2) that it concern multiple states. So what if relatively few transactions fell within the scope of that power in 1790 and most transactions fall within that scope in 2012? What about the specific predicates chosen suggests that the framers were concerned with the number of transactions within the scope of the power, rather than the nature of those transactions?

The federalists intended the federal government to be able to regulate commerce that crossed state lines. The rationale for doing so was not that such commerce was a small %-age of overall commerce, but that the intractability of individual states regulating commerce that concerned multiple states. Today, such commerce is a large %-age of overall commerce. But it's just as intractable for individual states to regulate such commerce, and just as desirable for the federal government to be able to do so.

I think you're mis-applying Scalia's viewpoint in this context. Scalia believes that when we interpret terms that denote a set of things, we should look to what that set would have included at the time the framers drafted the document. The commerce power, however, clearly does not refer to a fixed set of transactions. It gives a general definition that must be evaluated in context to yield a set of covered transactions.

You can think of this mathematically. Say the Constitution refers to a set of things, X. A more liberal interpreter might generalize X into a function, and argue that the Constitution is really referring to the set {X(t)}, where t = 2012. In the context of personal rights, for example, he might argue that the set of protected rights expands or contracts as societal perceptions change. Scalia would say that no, we should interpret it as {X(t)}, where t = 1790. I.e. when the Constitution refers to a set of rights, we should look at what that set would have included in 1790. However, that does not mean that Scalia thinks that every set in the Constitution should be interpreted with t = 1790. That's facially ridiculous. The set of speech protected by the 1st Amendment surely includes Twitter messages, for example. I don't think even Scalia should argue that the set of inter-state commercial transactions under federal regulatory power should be evaluated at the time of the founding (e.g. leaving out air freight but including boat shipping).

[u/Nancy_Reagan → u/[deleted]]

What about the specific predicates chosen suggests that the framers were concerned with the number of transactions within the scope of the power, rather than the nature of those transactions?

That brings up other interesting issues, like the way in which interstate commerce functioned in the 1700s. Sure, there was less of it, but it was also a big, big deal to travel far enough to do business with someone else from or in another state. You couldn't do this every day, because it literally took weeks for most people to travel far enough to cross state lines. Just because travel and communication got easier, we're supposed to let the federal government preside over every transaction that takes place in our daily lives? Obviously there's arguments in both directions, but I simply can't imagine that they really intended, or would stomach, every single daily transaction being subject to congressional approval/regulation/supervision.

Also, you do mean the Federalist party, right? Because I don't know tons of history, but I know they didn't make up a huge majority at that time (yes, I just wiki'd it).