[consteval]

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.

[pdonis]

> Depends on who your employees are.

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.

[consteval]

> 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.

[pdonis]

> corporations as we know them did not exist.

Yes, they did. Corporations existed in the British Empire in the 1600s. The Founders were quite familiar with the concept.

> the type of employment we have now and that most people experience did not exist in the 1800s.

This is simply false as a historical claim. If anything, workers had less leverage relative to corporate employers in the 1800s than they have now.