Home > Akhil Reed Amar, Andrew Napolitano, Etymology, healtcare, US Constitution, Words > Defining Words: Unabridged Version

Defining Words: Unabridged Version

My hyper-partisan Republican uncle (who is conveniently reading the constitution more absolutely and limitedly now that a Democrat is in office) sent me this video of Judge Andrew Napolitano, who I generally like and usually find agreeable.  But I couldn’t help notice the word he chose to narrowly define while failing to acknowledge the more broad meaning of the other operative word in the “Commerce Clause.”

I looked up his Wall Street Journal piece on the Constitutionality of healthcare regulation, which he references, and his neglect goes further than in his speech.  He argues that during the time of the Framers, the commerce clause use for the word “regulate” meant to keep “regular.” 

James Madison, who argued that to regulate meant to keep regular, would have shuddered at such circular reasoning. Madison’s understanding was the commonly held one in 1789, since the principle reason for the Constitutional Convention was to establish a central government that would prevent ruinous state-imposed tariffs that favored in-state businesses. It would do so by assuring that commerce between the states was kept “regular.”

 He spends further time complaining that the Supreme Court has given Congress the ability to regulate noncommercial behavior such as our healthcare system, which he argues wasn’t ever intended.  But it is not always clear what is or isn’t commercial – and Napolitano does his readers a disservice by omitting the more expansive definition “commerce” used to carry in the Framers’ era.  


As Yale Law School Professor, Akhil Reed Amar, writes

But “commerce” also had in 1787, and retains even now, a broader meaning referring to all forms of intercourse in the affairs of life, whether or not narrowly economic or mediated by explicit markets.  

[…]

Without a broad reading of “Commerce” in this clause, it is not entirely clear whence the federal government would derive its needed power to deal with noneconomic international incidents – or for that matter to address the entire range of vexing nonmercantile interactions and altercations that might arise among states.

He goes on to point out that the first Congress regulated noneconomic interactions.


This doesn’t prove one way or the other whether the regulation of healthcare is constitutional or not (I’m certainly not going to pretend I know the answer) but Napolitano should provide readers with a fuller etymology of the relevant words – not just the ones beneficial to his case.  

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