Methods of Interpreting the Commerce Clause: A Comparative Analysis
Robert J. Pushaw
Pepperdine University - School of Law
August 19, 2009
Arkansas Law Review, Vol. 55, 2003
Professor Pushaw further develops the neo-federalist method of interpreting the Commerce Clause that he adopted in his 1999 Iowa Law Review article with Grant Nelson titled, “Rethinking the Commerce Clause: Applying First Principles to Uphold Federal Commercial Regulation but Preserve State Control Over Social Issues.” Professor Pushaw first identifies the inadequacies in the five different, popular modes of Constitutional interpretation – textualism, structuralism, originalism, precedentialism and living constitutionalism. Professor Pushaw then demonstrates that his theory of neo-federalism provides the fullest and soundest reading of the Commerce Clause. Under this approach, Congress can regulate “commerce” – defined as the voluntary sale of goods or services and all accompanying activities intended for the marketplace, including production and the compensated rendering of services – but not purely cultural, moral and social matters. This theory has deep roots in the text and history of the Commerce Clause, yet also accommodates changes over the years and evolving congressional practice and judicial precedent.
Number of Pages in PDF File: 28
Keywords: constitional interpretation, textualism, structuralism, originalism, precedentialism, living constitutionalism, federalism, commerce clause
JEL Classification: K40Accepted Paper Series
Date posted: August 20, 2009
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