You can’t “violate” the interstate commerce clause; it grants powers, doesn’t limit them.
(It, along with “necessary and proper”, have been used to justify just about every activity the federal government has done.)
(It, along with “necessary and proper”, have been used to justify just about every activity the federal government has done.)
I don't think this is true even for the strictest originalist interpretation possible. Without the Bill of Rights, Congress and the President would have much more expansive power in their creation and especially enforcement of law.
The Constitution does not establish a process for the federal government to investigate, detain, try, and punish people for violating its laws, though it is clear that it must have those powers. The major function of the Bill of Rights is to draw lines around those powers, lines that perhaps existed in the common law, but that could have been altered by Act of Congress in the absence of a constitutional provision.
There are also parts of the Bill of Rights which do constraint Congress's enumerated powers. For example, even under a strict originalist interpretation, the Commerce Clause would allow Congress to take actions that abridge the freedom of speech, religion, and assembly. It could prohibit the publishing of certain newspapers across state lines, for instance. The First Amendment prevents that kind of thing.
Hamilton made an interesting argument in Federalist 84, that rights like freedom of the press and of speech are too vague to belong in a legal document, since their interpretation would necessarily be determined solely by political winds. Compare to the more concrete prohibition of ex post facto laws, for example. Nevertheless, the majority of the Bill of Rights turned out to be more like those concrete provisions. The First and Second Amendments are the most notable exceptions, and his predictions have partially panned out. Thankfully, it's been for the better anyway: freedom of speech as we know it would not exist without the First Amendment.
>The Constitution does not establish a process for the federal government to investigate, detain, try, and punish people for violating its laws, though it is clear that it must have those powers.
These are great examples, and I think they cut straight to the heart of the issue. Would the ideal solution be to rewrite the Constitution as a truthful, detailed, and exhaustive list of the powers the government does have, or would it be best to list only restrictions to the government's power? Or is a mix necessary, despite the inherent contradictions?
Justice Thomas and the late Justice Scalia, and others before them, shared your view.