Withstatutory text which Clarke quoted inpartthe statute here the Sherman Act wasenacted in nineteen in and sibleyprohibits quote restraints of trade orcommerce among the states or withforeign nations it is unthinkable thatanyone in would have thought thatthe intrastate practice of dentistry ormost other professions governed by.
The Supreme Court’s decision had anythingwhatsoever to do with restraints oftrade or commerce among the states orwith foreign nations and certainly itwould have been even more unthinkable tobelieve that state sovereign regulationand state organization of thatregulation of that intrastate practiceof dentistry has anything to do with.
The strength of trade or commerce among thestates specifically here a teethwhitener serving his local community ata local strip mall is simply not engagedin the commerce among the states evenmore emphatically state regulation ofthats teeth what of that teeth whiteneris not commerce among the states andwhile it is in vogue in modernjurisprudence to discard all limitationson what is commerce among the statesWickard race.
You guys know the cases Iwould think that textualist and originallists would not be happy with thedecision that is promised entirely andcompletely upon this erroneousunderstanding of what interstatecommerce is and indeed a decision thatgoes well beyond wicker and race indeclaring that the manner of stateregulation of intrastate commerce isitself something to do with commerceamong the states and this brings me tothe second level upon.
Which I believeeveryone in this room should have atactically reject this decision on firstprinciples federalism as I know theSherman Act has nothing to do with howstates organize their local boards whostaffs them how they’re supervised atthe time the Sherman Act was enacted thefederal government was not even thoughtto have any authority what’s over oversuch matters of local state governmentsyet the remarkable upshot of thisdecision is that states.
Throughout thiscountry including in my state of WestVirginia are scrambling to figure outhow to conform their internalorganizations of state government to fitthe Supreme Court’s mandates certainlymany states could benefit from policychanges in this area and I’ll talk aboutthat a little more in a minute but itshould be deeply offensive to everyperson committed to federalto have this change forced by a federalagency and federal courts without anystatutory constitutional authority fordoing so and even moving beyond coreprinciples I don’t think the NorthCarolina dental board.
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