When I did, I found to my surprise that the term "commerce" was consistently used in the narrow sense and that there is no surviving example of it being used in either source in any broader sense. By contrast, "original intent" refers to the goals, objectives, or purposes of those who wrote or ratified the text.
Those who believe that we must pay attention to the framers or ratifiers because they were somehow authorized (by consent or something else) to issue binding commands to the rest of the population and to their posterity may want, for this reason, to determine the intentions or objectives that lie behind their words.In contrast, those who believe that the actions of the ratifiers established a rule of law that is binding if its content is "good enough" to be legitimate would want to use a writing to "lock-in" that meaning and, once locked in, adhere to it unless and until it is changed in writing.Due either to ambiguity or vagueness, the original meaning of the text may not always determine a unique rule of law to be applied to a particular case or controversy.While not indeterminate, the original meaning can be "underdeterminate."Indeed, because the framers frequently used abstract language, this will often be the case."Among the several States" meant between persons of one state and another; and "To regulate" generally meant "to make regular"--that is, to specify how an activity may be transacted--when applied to domestic commerce, but when applied to foreign trade also included the power to make "prohibitory regulations." In sum, according to the original meaning of the Commerce Clause, Congress has power to specify rules to govern the manner by which people may exchange or trade goods from one state to another, to remove obstructions to domestic trade erected by states, and to both regulate and restrict the flow of goods to and from other nations (and the Indian tribes) for the purpose of promoting the domestic economy and foreign trade..
In his concurring opinion, Justice Thomas offered a critique of contemporary Commerce Clause doctrine--based on the original meaning of the clause--that went well beyond the majority opinion.What is ultimately important is not what the framers or ratifiers intended to accomplish but what they succeeded in adopting and conveying to the public.With original meaning, then, more "historical context" is not automatically preferred., I will present evidence here that strongly indicates that they, Crosskey, and Hamilton and Adair are wrong with respect to the original meaning of the term "commerce" in the Commerce Clause. And it is also important to distinguish interpretation from construction so as to avoid asking too much of the former, or confusing the former with the latter., "original meaning" refers to the meaning a reasonable speaker of English would have attached to the words, phrases, sentences, etc. It is originalist because it disregards any change to that meaning that may have occurred in the intervening years.Indeed, when I first read Hamilton and Adair and Crosskey, alongside Nelson and Pushaw's endorsement of their work, I too was persuaded that "commerce" meant any "gainful activity"--until I had a chance to survey the records of the Constitutional Convention and the ratification debates for myself. It is objective insofar as it looks to the public meaning conveyed by the words used in the Constitution, rather than to the subjective intentions of its framers or ratifiers.In addition, evidence removed from the immediate process of drafting and ratification can confirm our evaluation of more relevant evidence or provoke us to take a closer look at what we thought was clear evidence of original meaning.