At Volokh Conspiracy, Josh Blackman: A Tale of Two Originalists – Justice Gorsuch v. Justice Thomas in Brackeen. From the introduction:
… For those who care about originalism, Brackeen is probably the most significant case of the term…. I'll focus on the question of whether ICWA is within Congress's Article I powers. … ICWA, to the extent it is within Congress's Article I powers, can only be supported by Article I, Section 8, Clause 3:
The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
… Justices Thomas and Gorsuch disagree about the meaning of "commerce" in the Indian Commerce Clause. Justice Gorsuch contends the meaning of "commerce" is broader with regard to Congress's powers to regulate Indian tribes. This analysis, which stretches about two pages, appears in Part II-C-2 of the concurrence. Part III-A-2 of Justice Thomas's dissent provides the counter.
I will walk through several points on which Gorsuch and Thomas disagree….
From the substantive discussion:
During the Constitutional Convention, there was a proposal to give Congress the power to regulate "Indian Affairs." (The Articles of Confederation used such language). But this proposal was rejected, twice. (Lorianne Updike Toler wrote a fascinating article and post on this history.) What inference should we draw from this rejection? Justice Thomas observed that the word "affairs" is broader than the word "commerce." Thomas concluded, "whatever the precise contours of a freestanding 'Indian Affairs' Clause might have been, the Founders' specific rejection of such a power shows that there is no basis to stretch the Commerce Clause beyond its normal limits." Justice Gorsuch, however, favorably cites scholarship from Professor Jack Balkin, who expressly equates Indian "commerce" with Indian "Affairs."
Congress has the authority to manage "all interactions or affairs … with the Indian [T]ribes" and foreign sovereigns—wherever those interactions or affairs may occur.
Justice Thomas countered that "when the Founders referred to Indian 'affairs,' they were often referring to diplomatic relations—going far afield of their references to Indian 'commerce.'"
…
Justice Thomas explains that the word "Commerce" would "naturally" have the "same meaning" with respect to interstate commerce, Indian commerce, and foreign commerce. Here he cites Professor Sai Prakash's article that promotes intrasentence uniformity. Justice Thomas observed that the parties and amici have not presented "any evidence that the Founders thought that the term "Commerce" in the Commerce Clause meant different things for Indian tribes than it did for commerce between States."
Justice Gorsuch counters that "Indian commerce was considered 'a special subject with a definite content,' quite 'distinct and specialized' from other sorts of 'commerce.'" Here, Justice Gorsuch cites Professor Gregory Ablavsky, who surveyed founding-era usage, and concluded that Indian commerce "took on a broader meaning than simple economic exchange." As best as I can tell, Professor Ablavsky's brief did not perform any corpus linguistic analysis. Rather, he cited what Justice Thomas referred to as "a few, fairly isolated references to 'commerce' outside the context of trade, usually in the context of sexual encounters." …
Justice Thomas then cited a host of statements from Washington, Jefferson, and others to show that "When discussing 'commerce' with Indian tribes, the Founders plainly meant buying and selling goods and transportation for that purpose." For good measure, Footnote 7 includes another raft of entries. When determining original meaning, by corpus lingusitics or otherwise, it is useful to determine a predominant sense of a word. Thomas's position provides far more evidence of the majority sense.
…
Justice Thomas offers a brief rejoinder to the Balkin theory of intercourse:
Nor is the definition of "commerce" as "intercourse" instructive, because dictionaries from the era also defined "intercourse" as "commerce." E.g., Johnson; Allen. Even some of these same scholars concede that the Founders overwhelmingly discussed "trade" with Indians—far more than either "intercourse" or "commerce" with them. See Ablavsky 1028, n. 81.
More broadly, Balkin's theory of "intercourse" was not constrained to the Indian Commerce Clause. He would extend his theory to the Interstate Commerce Clause. And Balkin expressly defends the New Deal precedents as an originalist matter:
I disagree both with originalists and with their critics because I do not believe that the New Deal is inconsistent with the Constitution's original meaning, its text, or its underlying principles.
Is Gorsuch willing to follow Balkin all the way to 1937? He does hint at a way to distinguish away Balkin's work.
There are some textual differences in Article I, Section 8, Clause 3. The Interstate Commerce Clause applies to commerce "among" the several states, while the Indian Commerce Clause refers to commerce "with" the Indian Tribes. Gorsuch reasons that this varied "language suggests a shared framework for Congress's Indian and foreign commerce powers and a different one for its interstate commerce authority." And, Gorsuch concludes, again citing Balkin, "'Congress's powers to regulate domestic commerce are more constrained' than its powers to regulate Indian and foreign commerce."
I am a big fan of Jack Balkin's work, but I am still partial to Randy Barnett's criticism of the "intercourse" theory. Barnett did not discuss the Indian Commerce Clause aspect, so we do not have a clear point-counterpoint on this issue. But on balance, I am hesitant to read Indian commerce as Indian "Affairs." Again, the Constitutional Convention expressly rejected an Indian affairs provision of the Constitution. Yet, Balkin, and Gorsuch apparently, would still vest Congress with that power.
And from the conclusion:
Justice Gorsuch has certainly given this issue some thought, but I see Brackeen as deviating from generally-accepted originalist methodology. I do not think he makes the case that the word "Commerce" is broader with regard to Indians, than with regard to interstate commerce. The words "with" and "among" are distinct, but that doesn't suffice to reject principles of intrasentence uniformity. Moreover, I would need to see a far more sophisticated corpus analysis to displace the predominant sense of what "commerce" meant in 1789. In addition, we have to contend with the Convention's express rejection of an Indian Affairs Clause, which shrank, rather than expanded Congress's powers. Finally, it raises huge red flags that Justice Gorsuch gladly signed onto the "intercourse" theory that is premised by Balkin's self-professed "living originalism," and rejected the work of Professor Robert Natelson on the Indian Commerce Clause. I've been in this business long enough to know not to challenge Natelson's work, unless I have really strong evidence. But Gorsuch did not even engage Natelson. Nor did Justice Gorsuch even respond to Justice Thomas.
Related: Professor Blackman also has this post on the majority opinion: Professor Barrett Flunks Brackeen's Lawyers.
Posted at 6:04 AM