1998 Articles

Toward a Principled Interpretation of the Commerce Clause

Merrill, Thomas W.

I do not subscribe to the view associated with many formalists that the content of all constitutional rules is to be discovered in some immutable original understanding. Instead, I prefer to deploy a If conventionalist" approach to constitutional interpretation, drawing upon a variety of sources that our legal community regards as authoritative.s These sources include the text of the Constitution and the evidence of the Framers' intentions, but also encompass the outcomes reached by the Supreme Court and other interpreters in applying the text to different controversies over time, as well as the evolved practices of the three branches of government.