Cite as: 529 U. S. 598 (2000)
Souter, J., dissenting
The objection to reviving traditional state spheres of action as a consideration in commerce analysis, however, not only rests on the portent of incoherence, but is compounded by a further defect just as fundamental. The defect, in essence, is the majority's rejection of the Founders' considered judgment that politics, not judicial review, should mediate between state and national interests as the strength and legislative jurisdiction of the National Government inevitably increased through the expected growth of the national economy.15 Whereas today's majority takes a leaf from the book of the old judicial economists in saying that the Court should somehow draw the line to keep the federal relationship in a proper balance, Madison, Wilson, and Marshall understood the Constitution very differently.
Although Madison had emphasized the conception of a National Government of discrete powers (a conception that a number of the ratifying conventions thought was too indeterminate to protect civil liberties),16 Madison himself must have sensed the potential scope of some of the powers granted (such as the authority to regulate commerce), for he
power even though falling within the limits defined by the substantial effects test is to deny our constitutional history.
15 That the national economy and the national legislative power expand in tandem is not a recent discovery. This Court accepted the prospect well over 100 years ago, noting that the commerce powers "are not confined to the instrumentalities of commerce, or the postal service known or in use when the Constitution was adopted, but they keep pace with the progress of the country, and adapt themselves to the new developments of time and circumstances." Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U. S. 1, 9 (1878). See also, e. g., Farmers Loan & Trust Co. v. Minnesota, 280 U. S. 204, 211-212 (1930) ("Primitive conditions have passed; business is now transacted on a national scale").
16 As mentioned in n. 11, supra, many state conventions voted in favor of the Constitution only after proposing amendments. See 1 Elliot's Debates 322-323 (Massachusetts), 325 (South Carolina), 325-327 (New Hampshire), 327 (Virginia), 327-331 (New York), 331-332 (North Carolina), 334- 337 (Rhode Island).
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