Does "commerce" include employment? Of course, with our current jurisprudence (someone else downthread mentioned Wickard v. Filburn), the Commerce Clause has been expanded out of all recognition. But I'm not sure the Founders would have included employment in "commerce".
Also, even if we assume employment is commerce, is it commerce "with foreign nations, or among the several States"?
Depends on who your employees are. Are they all retained to one state, or several, or international?
It's commerce because money exchanges hands. Labor is sold and bought. To me, and I think almost anyone reasonable, it is obviously commerce.
Personally, I think this entire textualist idea of "let's interpret the constitution like its the 1800s" is bogus. The founding fathers were not stupid and short-sighted. They could see the growth of this country and understood, as time goes on, technology changes and culture changes. They wrote the constitution in such a way where it will remain reasonable.
If this is correct, then on the assumption that employment is commerce, Congress cannot possibly have the power to regulate employment in general under the Commerce Clause; it could only regulate employment in cases where the employees are in a different state or country.
> It's commerce because money exchanges hands. Labor is sold and bought.
Some definitions of "commerce" are this general, but others are not. The term is ambiguous.
> I think this entire textualist idea of "let's interpret the constitution like its the 1800s" is bogus.
For things which didn't even exist when the Constitution was written, of course we have to make decisions about what it means that the Founders couldn't possibly make. For example, the Supreme Court had to rule on whether wiretapping is a "search" within the meaning of the Fourth Amendment, and they couldn't just ask what the Founders thought since wiretapping didn't exist then.
But employment did exist then, and it wasn't a new technology or cultural development. In such cases I think the intent of the Founders is a pertinent question.
> But employment did exist then, and it wasn't a new technology or cultural development
kind of, but not really. Because corporations as we know them did not exist. Times were very, very different. A non-compete COULD make sense in mom & pop contexts in a small 1800s town. In a multi-national corporate context things change.
So no, the type of employment we have now and that most people experience did not exist in the 1800s. To me, while both share the word "employment", they're fundamentally different arrangements.
> not sure the Founders would have included employment in "commerce".
We can't interrogate them to find out and the world has changed enormously since then. Why should we be bound to the unverifiable world view of dead men?
You cannot have commerce without labor and the understanding of markets now include employees/labor as a market.
> Why should we be bound to the unverifiable world view of dead men?
The Constitution is the supreme law of the land in the US. The way to update it to take changes in the world into account is to amend it, which has already happened twenty-seven times. It is not to just ignore what it says or pretend it says something different if you don't like what it says.
I'm not saying ignore it just don't pretend we know what the Founders intended with every little nuance of language to justify your own preferred interpretation. Every other part of law and jurisprudence deals with the words as they are written not trying to scry into the past to peek in side the mind of dead men to figure out what they would have thought they meant and wanted to do.
And again how can you have commerce without labor? It's not separable from the rest of the process.
> don't pretend we know what the Founders intended with every little nuance of language to justify your own preferred interpretation
I wasn't doing this, so whatever you are arguing against, it isn't me.
> Every other part of law and jurisprudence deals with the words as they are written
So you think that, for example, Wickard v. Filburn, in which the Supreme Court ruled that Congress could regulate a farmer growing wheat for his own use under the Commerce Clause, was just dealing with the words as they are written?
> how can you have commerce without labor
Of course producing things that will be traded in commerce requires labor, but that's irrelevant to the question of whether employment counts as "commerce", which is what I was asking about.
> I wasn't doing this, so whatever you are arguing against, it isn't me.
That's the core of what you're asking, "would they have understood it as part of commerce". That's literally asking us to peer into the past and into the minds of the Founders. It's the core problem of originalism too, we cannot actually know what they meant to mean or would think now.
> Wickard v. Filburn
The logic is sound in the case intrastate actions have interstate consequences. It wasn't the first time these kind of controls had been passed either. But also I don't think we should be wedded to the exact nature the Founders thought the country should take. They gave us a system with the ability to interpret their words and we should use it.
> Of course producing things that will be traded in commerce requires labor, but that's irrelevant to the question of whether employment counts as "commerce", which is what I was asking about.
So it IS an inextricable part of it but somehow doesn't count as part of it legally?
Wickard v. Filburn basically destroyed the commerce clause. Growing wheat on your own farm is "interstate commerce" because it impacts national wheat prices (since you would have bought that wheat otherwise!). In the second half of the 20th century, this ruling was used to great effect to limit the power of in-state businesses in the South to discriminate.
On the other hand, it was also used to justify why the federal government can prevent states from legalizing marijuana, even if it won't leave the state. It's certainly a ruling with a complicated moral legacy, in that it has some clearly good use cases, a few bad ones, while also brazenly defying the clear meaning of the constitution because doing so was convenient to the state.
Not sure how I feel about it, but I guess it was inevitable anyway.
You know, I think I’d be fine with non-competes that only apply to jobs with employers in the same state, and to jobs with an employer that does no business outside the state.
That’d effectively be a blanket ban anyway, so sure.
Also, even if we assume employment is commerce, is it commerce "with foreign nations, or among the several States"?