I was among the sellouts Radley took to task last week for winking at the national telemarketing do-not-call list. Now, I’m not altogether certain the position I sketched out on this issue is the right one, but I am pretty sure that Radley’s Commerce Clause analysis here is off base. He writes:

Nearly every libertarian constructionist interpretation of the Constitution I’ve read says that the intent of the Commerce Clause was to facilitate commerce between the states, not to inhibit it. It was meant to set up a kind of “free trade zone” between the states. So if Mississippi, for example, wanted to tax every boat carrying cotton not grown in Mississippi traveling down the Mississippi River, Congress would have the authority to intervene. I’ve never read a libertarian interpretation of the Commerce Clause that says it should be interpreted to mean that Congress can tell businesses how they can or can’t solicit customers.

Well, you know, I don’t much care about the “libertarian” or “non-libertarian” interpretation; I’m more curious about the correct interpretation. And if the “libertarian” interpretation insists that, contrary to appearances, the Commerce Clause does not empower the federal government to “regulate Commerce… among the several States,” then the “libertarian interpretation” is wrong.

Oh, I fully agree that the abuses Radley goes on to cite, wherein “commerce” is read to mean “manufacturing” or “anything that might affect commerce” or “anything Congress feels like passing a law about” are ultra vires. But that’s not what we’re talking about here, is it? This isn’t someone growing wheat on his own farm, or insisting on a 50 hour work week in a local factory. Were talking about folks in one state calling up folks in another state to carry out a business transaction. If that’s not “commerce… among the several States” I don’t know what is.

Now, Radley rightly enough points out that a primary purpose of granting the fed this power was to remove it from the states, to prevent an unweildy system of bilateral trade arrangements. And that’s true, but doesn’t obviate the fact that the means of doing this was, nevertheless, to grant a power. The Framers could have written a clause elsewhere—say in Article 1, Section 10, where you find a whole slew of “No state shall…” provisions—denying states the power to make rules about state-to-state commerce. But they didn’t do that. Presumably they didn’t do that because, in addition to refusing a power to the states, they really did intend (as the language of the clause might, to the untrained eye, seem to suggest) to make an affirmative power grant. And if you look at some of the early debates over the (proposed) Constitution, you see that it seemed to be agreed that, for instance, the power to regulate ship tonnages was included.

All well and good, says Radley, but that (he avers) is actual commerce, whereas telemarketing is just a form of advertising, no more a part of commerce, on a proper reading, than is manufacturing. But that’s simply false. Telemarketers aren’t just informing you about their product; they’re attempting to get you to conclude a transaction right there on the line. When I agree to buy a widget and give the nice operator my credit card number, isn’t that commerce? I’m not entirely certain, but I’m going to hazard a guess that if all they did was tout some merchandise, then hang up, counting on the person called to follow through later, it would be a disastrously cost-inefficient form of advertising.

If you focus exclusively on the shipping of material goods—ordering a Greatest Hits of the 70s compilation or what have you—you might attempt to argue that the actual “commerce” occured only later, when the physical item crossed state boundaries. But that won’t quite do either: there are many forms of commerce that don’t involve the movement of physical goods at all. Now, again, you might say: “fine, then commerce only covers the cases where physical goods are transferred.”

But Radley’s own reasoning about the intent of the Commerce Clause precludes this move. Sure, interstate information commerce wasn’t an issue the Framers had to deal with, but it presents precisely the same problem they sought to avoid. If the federal commerce power doesn’t cover these transactions, then its left to the state police powers, and you face the prospect of 50 times 50 different rules and taxes governing intangible commercial exchanges across state borders. If we take Radley seriously when he says that the intent of the Framers was to avoid this, then the only consistent interpretation of the Clause demands that it cover intangible commercial transactions. We are forced, then, to read “commerce” as having taken place with the conclusion of the verbal contract, not with the transfer (which may or may not occur) of physical goods.

Radley closes with the warning that this sort of reasoning is the thin end of the wedge for the kind of post-New Deal Commerce Clause jurisprudence that libertarians detest. First, I don’t think that’s right. Saying that “commerce” includes cross-border transactions or business agreements even without physical transfer of goods does not entail that commerce means, as it’s been read to mean, “anything that seems like it might possibly marginally affect commerce if you squint real hard.” But second, and probably more importantly, that’s not really the right way to think about the Constitution, is it? Presumably Radley’s objection to the New Deal is, at least in part, that it was enabled by jurisprudence-done-backwards, or as Lewis Carroll so pithily put it: “sentence first—verdict afterwards!” Well, that’s not a sound or honest way to do legal reasoning, even when you’re pronouncing the sentence.