There’s a lot of egregious hackery in Vinson’s opinion yesterday. The Wall Street Journal has crossed some of Vinson’s hackery with some of its own. I’m not sure if this Vinson/WSJ law office history has topped Vinson’s assertion that not buying health insurance has no effect on markets in health insurance — it’s a high bar — but this attempt to enlist John Marshall [!] in the service of a narrow commerce clause some pretty impressive hackwork:
Congressional Democrats and the Obama Administration justified this coercion under the Commerce Clause, so it is fitting that Judge Vinson conducts a deep investigation into its history and intent, including Madison’s notes at the Constitutional Convention and the jurisprudence of the first Chief Justice [sic!], John Marshall. The original purpose of the Commerce Clause was to eliminate the interstate trade barriers that prevailed under the Articles of Confederation—among the major national problems that gave rise to the Constitution.
Did Marshall believe that the Commerce Clause should be essentially limited to the elimination of trade barriers? Well, I happen to have John Marshall right here, and:
The subject to be regulated is commerce, and our Constitution being, as was aptly said at the bar, one of enumeration, and not of definition, to ascertain the extent of the power, it becomes necessary to settle the meaning of the word. The counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a general term, applicable to many objects, to one of its significations. Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse.
Implying that Marshall shares the modern libertarian conception of the commerce clause is an act of remarkable ignorance. More on this later this afternoon, but citing Marshall on behalf of the side he spent his career arguing against is embarrassing. I can’t wait to see the Journal op-ed citing Marshall in defense of Hudson’s interpretation of the necessary and proper clause…