The Commerce Clause Looks Out Its Window

Abstract:     
The paper discusses two idealized strains of Commerce Clause interpretive theory - construing the breadth of the term 'commerce' restrictively or expansively - in the context of philosophy of language and cognitive psychology. The restrictive theory, treating commerce solely as the act of buying and selling movable goods, is shown to be subject to expansion using techniques such as Eleanor Rosch’s cognitive prototype theory, gradated membership, Aristotelian categorical correlatives, and other contextualist devices. The expansive theory, however, in potentially linking all activity to commerce, is shown to be vulnerable to the same contextualizing attack: the expansive theory neglects the context provided by Rosch’s theory of cue validity, George Lakoff’s hedging words, and contrastive categories, which provided the motivation to reject the restrictive theory in the first place. Examples of activities that are not regulable under the Commerce Clause are provided, from an originalist perspective, based on the work of Prof. Natelson.

Number of Pages in PDF File: 12

Keywords: commerce clause, Constitution, philosophy of language, cognitive psychology, Lakoff, Rosch, Natelson, prototype theory, originalism

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