Magazine May 17, 2010, Issue

Our Defunct Commercial Constitution

Justice Scalia on Capitol Hill (Kevin Lamarque/Reuters)
Federalism and originalism are not enough to restore it

There is, or there once was, such a thing as the “commercial Constitution.” Most of the powers and prohibitions specified in the Constitution concern commercial matters: commerce itself, obviously, but also patents and copyrights, bankruptcy, taxation, tariffs and duties, the coinage of money, contracts, and property rights. Enough of those provisions have fallen into desuetude to suggest that we no longer have a commercial Constitution.

Conservative jurists should be favorably disposed to restoring it, not simply because doing so would help to protect commerce against a government that seems to know no restraint, but also for a deeper reason: “Structure is

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