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Restoring the Lost ConstitutionThe Presumption of Liberty$
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Randy E. Barnett

Print publication date: 2013

Print ISBN-13: 9780691159737

Published to Princeton Scholarship Online: October 2017

DOI: 10.23943/princeton/9780691159737.001.0001

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The Proper Scope of Federal Power: The Meaning of the Commerce Clause

The Proper Scope of Federal Power: The Meaning of the Commerce Clause

(p.277) Chapter Eleven The Proper Scope of Federal Power: The Meaning of the Commerce Clause
Restoring the Lost Constitution

Randy E. Barnett

Princeton University Press

This chapter examines the propriety of federal laws under the power most often invoked to justify restrictions on liberty: the power to regulate commerce among the several states. Courts are not empowered to disregard powers that are expressly enumerated in the Constitution, even those that violate the rights of the people. They are authorized only to interpret the meaning of these powers, and where this meaning is underdeterminate, to construe them in a manner that is consistent with original meaning and that would render their exercise as legitimate as possible. The chapter analyzes the federal power to regulate commerce by explaining what the Commerce Clause means. It also considers judicial interpretations of commerce during the period 1824–1935 and shows that the term “among the states” independently limits federal power with respect to commerce. Finally, it reviews John Marshall's arguments in Gibbons v. Ogden.

Keywords:   federal laws, liberty, commerce, U.S. Constitution, original meaning, federal power, Commerce Clause, John Marshall, Gibbons v. Ogden

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