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Jack Balkin's Interaction Theory Of “Commerce”, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In his book, Living Originalism, Jack Balkin proposes what he calls the “interaction theory” of the original semantic meaning of the word “commerce” in the Commerce Clause. He claims that “commerce” meant “social interaction.” In this article I show why this theory is wrong due to errors of commission and omission. Balkin is wrong to reduce “commerce” to “intercourse,” “intercourse” to “interaction,” and “interaction” to “affecting.” This triple reduction distorts rather than illuminates the original meaning of “commerce.” And Balkin omits from his discussion the massive amounts of evidence of contemporary usage—along with dictionary definitions of “intercourse”—establishing that “commerce” …