Our Three Commerce Clauses and the Presumption of Intrasentence Uniformity
26 Pages Posted: 24 Oct 2016 Last revised: 30 Oct 2016
Date Written: 2003
This piece defends a presumption of intrasentence uniformity in constitutional, statutory, and regulatory interpretation. It also applies that presumption to the Commerce Clause and concludes that there is very little originalist evidence that could overcome the presumption of a uniform meaning for "regulate commerce." In particular, Section I defends the presumption of intrasentence uniformity in general terms. Section II applies the presumption to the Commerce Clause and concludes that there is not enough textual or historical evidence to overcome the presumption that "regulate commerce" has a uniform meaning throughout the Commerce Clause. Section III suggests that under current judicial doctrine, congressional power differs as to all three Commerce Clause subparts. Section III also reveals that the powers retained by the states as to all three subparts of the Commerce Clause vary as well. That is to say, the dormant aspect of the Commerce Clause applies differently to each subpart.
Just to be clear, I do not contend that intrasentence uniformity must always triumph. I merely defend a very strong presumption of intrasentence uniformity that can be overcome by textual and historical evidence. I thus disassociate myself from Edward Corwin's forceful assertion "that a word should have two quite different meanings in a single short sentence in which it occurs but once, is certainly a novelty to the science of hermeneutics and probably to that of linguistics as well. In his zeal to champion a unified and broad Commerce Clause, Corwin went too far. A word can have two or more different meanings even in a short sentence in which the word occurs but once. Nonetheless, to my mind, the intuition underlying his overblown claim has undeniable appeal.
Keywords: Commerce Clause, Separation of Powers, Intrasentence Uniformity
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