There’s an aspect to expansive readings of the Commerce Clause that I’ve never really seen explored (I may have missed it), & that I don’t see how defenders of Wickard v Filburn can square. It has to do w/ the debate over what we now call the Bill of Rights. 1/

As you probably know, the Federalists defended the original constitution against amendment by arguing that the doctrine of enumerated powers protected our liberties. There’s no need for an enumerated right for freedom of the press b/c the Constitution ... 2/

simply doesn’t give the government the right to regulate the press. On this point the Antifederalists won out, & so we have our 1st Amendment, etc. But, if we interpreted enumerated powers—including the Commerce Clause as Hamilton & the original … 3/

critics of a bill of rights said it should be interpreted (that it couldn’t regulate presses, let along “in-state presses”), then Wickard & other New Deal Commerce Clause cases would be completely wrong. And this is coming from Federalists—even Hamilton! 4/

So how do those who argue the CC has *always* allowed for expansive federal power respond to this? If *Hamilton* believed it wasn’t expansive enough to regulate the press, how could he have believed it can regulate growing wheat or pot, or not buying insurance? 5/

I suppose the response is the Commerce Clause was that expansive, but no one at the time, including Hamilton, realized it. Really? 6/