Rob Natelson comments on my recent post on the Indian Commerce Clause:
I agree with you that the Clause is not limited to tribes outside of state lines. But Jacob Levy is not correct to be “shocked” that the Clause in some ways granted less Indian-affairs power than Congress had under the Articles and less than Madison wanted. As I point out in my Indian Commerce Clause article, that is exactly what happened.
Madison proposed granting Congress more power than the ICC ultimately granted, but Madison was overruled. In fact, the assumptions adopted by Levy were already in the literature, and were among those I addressed in the portion of my paper addressing common errors of analysis. I wrote:
A related mistake has been to identify James Madison’s preferred constitutional arrangement with what the convention actually produced. This is an error because, as we have seen, Madison was somewhat more nationalist than most of the other delegates, especially during the convention’s final two months; and he was far more nationalist than the ratifying public. The convention’s final draft granted the new federal government less authority than Madison had desired. The ratification bargain granted still less. And, of course, not even Madison suggested granting Congress plenary dominion over the Indians. His proposal was for Congress to “regulate affairs with the Indians”—to govern transactions between tribes and citizens. Yet this still was more than the convention or the public was willing to accept.
By the way, I also addressed in the same "common errors" section the Amar/Balkin claim that the Indian Intercourse Act argues for a very broad meaning of "commerce."
Posted at 12:45 PM