dissenting.
The majority opinion begins its discussion by noting that in United States v. Johnson, 22 F.3d 106, 108-09 (6th Cir.1994), we upheld the federal carjacking statute at issue in this ease, 18 U.S.C. § 2119, against constitutional challenge, holding that the statute was within Congress’s Interstate Commerce Clause powers. Accordingly, the majority opinion embarks upon the “narrow mission” of determining whether United States v. Lopez, 514 U.S. -, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), “necessitates any alteration in Johnson’s conclusion.” Maj. Op. at 126. As I read the majority opinion, I find nothing “narrow” about its holdings. Because the opinion cannot be squared with either the structure of a federal government of limited and enumerated powers, compare U.S. Const. art. I, § 8 with id. amend. X, or with Lopez, I respectfully dissent.
I. The Interstate Commerce Clause.
A.
We start with first principles. The Constitution creates a Federal Government of enumerated powers. See U.S. Const., Art. I, § 8. As James Madison wrote, “[t]he powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” The Federalist No. 45, pp. 292-293 (C. Rossiter ed. 1961). This constitutionally mandated division of authority “was adopted by the Framers to ensure protection of our fundamental liberties.” Gregory v. Ashcroft, 501 U.S. 452, 458, 111 S.Ct. 2395, 2400, 115 L.Ed.2d 410 (1991) (internal quotation marks omitted). “Just as the separation and independence of the coordinate branches of the Federal Government serves to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.” Ibid.
Lopez, 514 U.S. at -, 115 S.Ct. at 1626.
The Constitution enumerates the powers of Congress in Article I, Section 8.
This “checklist” begins, “The Congress shall have the Power To ...,” and then sets forth eighteen clauses of discrete powers allocated to Congress. This affirmative grant of power has a negative corollary: those powers not listed in Article I, Section 8 do not belong to Congress. Had the drafters of the Constitution not intended Congress’s powers to be limited, a discrete enumeration of powers would have been unnecessary.
Michigan Protection & Advocacy Serv., Inc. v. Babin, 799 F.Supp. 695, 728-29 (E.D.Mich.1992) (footnote and citation omitted), aff'd on other grounds, 18 F.3d 337 (6th Cir.1994).
The authority of Congress is limited to those powers which the Constitution enumerates. See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 405, 4 L.Ed. 579 (1819), quoted in Lopez, 514 U.S. at -, 115 S.Ct. at 1633; U.S. Const. art. I, § 8; id. amend. X; cf. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 195, *1306 L.Ed. 28 (1824) (“The enumeration presupposes something not enumerated”), quoted in Lopez, 514 U.S. at -, -, 115 S.Ct. at 1627, 1638. A government of limited and enumerated powers cannot permit its officials deferential authority to determine the extent of their own powers. As James Madison noted in FEDERALIST No. 51, “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” The Federalist No. 51, at 320 (James Madison) (Isaac Kramnick ed., 1987). As another of the framers put it, weakness “renders men unfit to be trusted with unlimited power.” Russell Kirk, The Conservative Mind 90 (7th ed. 1986) (quoting John Adams, 6 Works 444-45). And it “is of the very essence of judicial duty” that the courts, and not the Congress, ultimately must determine what the extent of Congress’s limited and enumerated powers is, because, as Chief Justice John Marshall observed, “To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained?” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176, 178, 2 L.Ed. 60 (1803).
B.
In 1937, the Supreme Court expanded the interstate-commerce power but held that its scope
must be considered in the light of our dual system of government and may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local and create a completely centralized government.
National Labor Relations Bd. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37, 57 S.Ct. 615, 624, 81 L.Ed. 893 (1937), quoted in Lopez, 514 U.S. at -, 115 S.Ct. at 1628-29. Jones & Laughlin, and other more recent Supreme Court opinions, see generally Lopez, 514 U.S. at -, 115 S.Ct. at 1627-30, subject the Interstate Commerce Clause to outer limits. Id. at -, 115 S.Ct. at 1628 (citing Jones & Laughlin, 301 U.S. at 37, 57 S.Ct. at 624; United States v. Darby, 312 U.S. 100, 119-20, 61 S.Ct. 451, 459-60, 85 L.Ed. 609 (1941); Wickard v. Filburn, 317 U.S. 111, 125, 63 S.Ct. 82, 87, 87 L.Ed. 122 (1942)). These opinions delineate three broad categories of activity which Congress may regulate under its interstate-commerce authority. Id. at -, 115 S.Ct. at 1629 (citing Perez v. United States, 402 U.S. 146, 150, 91 S.Ct. 1357, 1359, 28 L.Ed.2d 686; Hodel v. Virginia Surface Mining & Reclamation Ass’n, 452 U.S. 264, 276-77, 101 S.Ct. 2352, 2360-61, 69 L.Ed.2d 1 (1981)).
While Congress may conclude that it has authority under the Interstate Commerce Clause, that “does not necessarily make it so.” Hodel, 452 U.S. at 311, 101 S.Ct. at 2391 (Rehnquist, J., concurring in judgment), quoted in Lopez, 514 U.S. at - n. 2, 115 S.Ct. at 1629 n. 2.1 It is the judiciary, rather than the Congress, that must ultimately determine whether Congress has the authority it seeks to invoke under the Interstate Commerce Clause, see Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 273, 85 S.Ct. 348, 366, 13 L.Ed.2d 258 (1964) (Black, J., concurring), quoted in Lopez, 514 U.S. at - n. 2, 115 S.Ct. at 1629 n. 2, properly defined. Like Congress, the judiciary must adhere to a proper understanding of the Constitution, see, e.g., Lopez, 514 U.S. at -, 115 S.Ct. at 1639 (Kennedy, J., concurring) (“it is the obligation of all officers of the Government to respect the constitutional design” (citations omitted)), and the Constitution does not necessarily mean what any one court says it means at any one time. See Graves v. New York ex rel. O’Keefe, 306 U.S. 466, 491-92, 59 S.Ct. 595, 604, 83 L.Ed. 927 (1939) (Frankfurter, J., concurring) (“the ultimate touchstone of constitutionality is the *131Constitution itself and not what we have said about it”).2
C.
Whether it would be wise for the federal government to take a particular action is beyond the point if the federal government does not have the constitutional authority to act. See, e.g., Seminole Tribe v. Florida, 517 U.S. -, -, 116 S.Ct. 1114, 1125, 134 L.Ed.2d 252 (1996) (inquiring whether Congress passed a statute pursuant to a constitutional provision granting Congress the power to act (citing Fitzpatrick v. Bitzer, 427 U.S. 445, 452-56, 96 S.Ct. 2666, 2669-71, 49 L.Ed.2d 614 (1976)); Lopez, 514 U.S. at -, 115 S.Ct. at 1641 (Kennedy, J., concurring) (‘While it is doubtful that any State, or indeed any reasonable person, would argue that it is wise policy to allow students to carry guns on school premises, considerable disagreement exists about how best to accomplish that goal. In this circumstance, the theory and utility of our federalism are revealed, for the States may perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear.” (citing San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 49-50, 93 S.Ct. 1278, 1304-05, 36 L.Ed.2d 16 (1973); New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S.Ct. 371, 386-87, 76 L.Ed. 747 (1932) (Brandeis, J., dissenting))); Hodel, 452 U.S. at 311 n. *, 101 S.Ct. at 2391 n. * (Rehnquist, J., concurring in judgment). As the Supreme Court has long recognized,
Extraordinary conditions may call for extraordinary remedies. But the argument necessarily stops short of an attempt to justify action which lies outside the sphere of constitutional authority. Extraordinary conditions do not create or enlarge constitutional power. The Constitution established a national government with powers deemed to be adequate, as they have proved to be both in war and peace, but these powers of the national government are limited by the constitutional grants. Those who act under these grants are not at liberty to transcend the imposed limits because they believe that more or different power is necessary. Such assertions of extra-constitutional authority were anticipated and precluded by the explicit terms of the Tenth Amendment — “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 528-29, 55 S.Ct. 837, 842-43, 79 L.Ed. 1570 (1935) (footnote omitted) (citing Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120, 121, 18 L.Ed. 281 (1866); Home Building & Loan Ass’n v. Blaisdell, 290 U.S. 398, 426, 54 S.Ct. 231, 235, 78 L.Ed. 413 (1934)).
While there is no question that Congress’s constitutional exercise of its authority under the Interstate Commerce Clause does not violate the Tenth Amendment, see, e.g., Hodel, 452 U.S. at 291-92, 101 S.Ct. at 2368, that principle says nothing about what Congress’s authority under that clause is.3
*132The authority of the federal government may not be pushed to such an extreme as to destroy the distinction, which the commerce clause itself establishes, between commerce “among the several States” and the internal concerns of a State. That distinction between what is national and what is local in the activities of commerce is vital to the maintenance of our federal system.
Jones & Laughlin, 301 U.S. at 30, 57 S.Ct. at 621 (citing Schechter Poultry, 295 U.S. at 549, 550, 554, 55 S.Ct. 837, 851, 853, 79 L.Ed. 1570), cited in Lopez, 514 U.S. at -, 115 S.Ct. at 1634. That is the issue before us today.
D.
The majority upholds the federal carjacking statute at issue in this case, 18 U.S.C. § 2119, under two of the three Lopez categories, see 514 U.S. at -, 115 S.Ct. at 1629-30, of Congress’s power to regulate commerce “among the several States.” U.S. Const. art. I, § 8, cl. 3. First, the majority rules that § 2119 is a permissible regulation of the instrumentalities of commerce. Second, the majority holds that the statute is a valid exercise of an intrastate activity that has a substantial effect upon interstate commerce. I address each aspect of the majority’s opinion in turn.
II. Instrumentalities of Interstate Commerce.
The majority opinion begins by reiterating the indisputable fact that Congress may regulate and protect the instrumentalities of interstate commerce. See Maj. Op. at 126 (quoting Lopez, 514 U.S. at -, 115 S.Ct. at 1629-30).4 The majority then says that the “carjacking statute ... is explicitly designed to regulate and protect an ‘instrumentality’ of interstate commerce,” and continues, “As both the Third and the Ninth Circuits have recognized, ‘ears are themselves instrumen-talities of commerce, which Congress may protect.’” Id. at 126-27 (quoting United States v. Oliver, 60 F.3d 547, 550 (9th Cir.1995), and citing United States v. Bishop, 66 F.3d 569, 588-90 (3d Cir.1995)). Explaining that cars, like trains and airplanes,5 are in-strumentalities of interstate commerce, because, unlike other objects of regulation, they “retain the inherent potential to affect commerce,” the majority concludes that:
[E]ven if a particular activity involving an instrumentality might not, through repetition elsewhere, substantially affect interstate commerce during the moment of regulation, the activity still falls within [Congress’s power to regulate and protect the instrumentalities of interstate commerce] because the object of regulation contains the unique capacity to affect commerce at some future point in time. In the case of carjackings, for instance, the inherent mobility of cars leads to a substantial likelihood that commerce will be affected — if not in the act of carjacking itself, then in subsequent use of the car by whoever eventually possesses it.
Id. at 127. This conclusion is wholly unsupported by any authority and far afield from the “narrow mission” the majority promises to undertake.
The notion that cars are “instrumentalities” of interstate commerce, and therefore, regulable under Congress’s Interstate Commerce Clause authority, has a certain appeal, since ears can be used for commercial purposes. It does not follow, however, that, because cars have the “inherent potential to affect commerce,” id., they are, without exception, “instrumentalities” of interstate commerce, and that federal statutes designed to regulate or protect them are within Congress’s power to regulate commerce among the several states.
First, many things, and for that matter, most people, “retain the inherent potential to *133affect commerce.”6 But this alone cannot suffice to give Congress the power to regulate or protect them. See U.S. Const. art. I, § 8, cl. 3; Lopez, 514 U.S. at -, 115 S.Ct. at 1629 (citations omitted). Second, if regulations “designed” to protect things having the inherent potential to affect interstate commerce are presumptively valid under the Interstate Commerce Clause, then a congressional regulation requiring homeowners to padlock their garages whenever a car is parked inside would withstand constitutional scrutiny. So, too, would federal criminalization of simple ear theft or turnstile-jumping in a municipality’s rapid-transit system. The notion that the federal government could legitimately enact such statutes under its interstate-commerce powers is troubling, to say the least. But these few examples provide, I think, an insight into the third flaw in the majority’s view of Congress’s interstate-commerce powers.
Although cars can be the instrumentalities of interstate commerce, the federal carjacking statute does not regulate or otherwise protect ears as instrumentalities of interstate commerce. Instead, § 2119 criminalizes carjacking regardless of whether a ear that is or has been carjacked was at that time functioning as an instrumentality of interstate commerce. As Judge Becker has well observed:
The fact that automobiles can be used as instrumentalities of interstate commerce does not grant to Congress plenary authority to regulate the use and operation of every individual’s automobile. Such an approach would constitute a dramatic encroachment on the regulation of automobiles, a traditional area of state concern, and would permit Congress to pass federal laws requiring individuals to wear seat-belts (as opposed to requiring that cars be manufactured with seatbelts) or banning motorists from making a right turn at a red light.
Bishop, 66 F.3d at 599 (Becker, J., concurring in part and dissenting in part).
The majority disagrees that Congress has the authority to make carjacking illegal only in those instances in which the carjacked car was “actually engaged in interstate commerce[,]”7 opining, without explanation, that such a view “seems inconsistent with Lopez’s own articulation of the commerce power.” The majority observes further that a rule making carjacking a federal offense only where a car was “actually engaged in interstate commerce” “appears to make Congress’s power [to regulate or protect the instrumentalities of interstate commerce] essentially identical to that which is already afforded under [Congress’s power to regulate an activity that substantially affects interstate commerce].” Maj. Op. at 127. The logic of this is not clear, but even if a rule permitting Congress to regulate or to protect instrumentalities of interstate commerce as instrumentalities of interstate commerce did have the effect of making Congress’s “instru-mentalities” power “essentially identical” to its “substantially affects” power, that is no reason to reject the rule.
Because § 2119 does not regulate or otherwise protect cars as instrumentalities of interstate commerce, but protects cars as cars, the majority, in order to uphold the statute, effectively expands the definition of an “instrumentality” of interstate commerce to include all cars. In other words, the majority extends Congress’s power to regulate things when they are instrumentalities of interstate commerce into the power to regulate such things under all circumstances. Following this approach, the question of whether a car was an instrumentality of interstate com*134merce when it was carjacked is not relevant. However, the Supreme Court’s line of cases that identifies the regulation of instrumental-ities of (and persons and things in) interstate commerce as one of the broad categories of activity that Congress may regulate under its interstate-commerce power renders this a question that we cannot contrive to avoid.
In enacting § 2119, Congress may well have assumed it has authority under the Interstate Commerce Clause to criminalize any carjacking, regardless of how the car is used. But we cannot resolve this case by blindly deferring to Congress’s judgment. We have an independent duty to measure Congress’s judgment against the constitutional source of Congress’s authority to act. See Marbury, 5 U.S. (1 Cranch) at 177. Doing so in this case requires that § 2119 be declared beyond Congress’s authority to regulate or protect the instrumentalities of interstate commerce. I reject the majority’s conclusions in this regard, for there is nothing in § 2119, its legislative history, or in the majority opinion that persuades me that the federal carjacking statute was either intended or designed to, or in fact does, regulate or protect cars as the instrumentalities of interstate commerce.
III. Activities Substantially Affecting Interstate Commerce.
The majority opinion’s second ground for concluding that § 2119 is a valid exercise of Congress’s interstate-commerce powers is that Congress had a rational basis8 for concluding that § 2119 regulates an activity, carjacking, which, albeit intrastate, has a substantial effect on interstate commerce, when taken in the aggregate. See Maj. Op. at 127-28.9 Therefore, the majority reasons, it must *135be sustained against McHenry’s constitutional attack. I disagree.
To begin with, the majority gives scant serious scrutiny to the rationales it offers in support of § 2119. After rehearsing the costs of carjacking and auto theft, the majority gives its imprimatur to Congress’s finding “that carjacking constituted an increasingly prominent type of auto theft, and that auto theft as a whole had profound effects on national and international commerce.” Id. at 6 (citation omitted).
In Lopez, the Supreme Court held that a similar eosts-of-erime rationale supporting the prohibition on possession of firearms in school zones was an inadequate justification for regulating that sort of firearms possession. 514 U.S. at -, 115 S.Ct. at 1682. The reason was that this rationale simply proved too much. Under this rationale, it was difficult to perceive any limit on federal power, even in areas where states have traditionally been sovereign. Id. The Court declined even to consider the “serious problem” and the “substantial threat to trade and commerce” which the regulated activity may pose. Id. at -, 115 S.Ct. at 1688. In the case sub judice, however, the majority disregards this aspect of Lopez, and sustains the carjacking statute on what can only be a eosts-of-crime-rationale. After Lopez, this will not do.
In an interesting passage of its opinion, the majority bolsters its conclusion by theorizing that:
[Bjeeause carjacking involves dispossessing a victim of an item deemed by Congress to be a significant “investment,” Congress could have made the reasonable determination that replacement costs alone were sufficient to justify regulation. Congress could have concluded that victims of carjacking will in many cases need to replace or repair their cars, and that carjacking consequently injects many of its victims back into the ear-buying, car-leasing, or car-repair market. Such transactions have a substantial effect on interstate commerce.
Maj. Op. at 128. If such an approach amply justifies a federal law criminalizing carjacking, it follows that it would also support making any automobile theft a federal crime. It would even support making the theft, more generally, of other “significant investments,” federal crimes. Surely, stereos and compact-disk players, personal computers and “dry goods,” such as refrigerators, microwaves, and washers and dryers, are “significant investments.” Would the theft of these items similarly be within the scope of Congress’s authority to criminalize under the Interstate Commerce Clause? As I read the majority opinion, they would be.
These questions are not merely rhetorical. Under our federal system of government, the “States possess primary authority for defining and enforcing the criminal law.” Engle v. Isaac, 456 U.S. 107, 128, 102 S.Ct. 1558, 1572, 71 L.Ed.2d 783 (1982); see also Lopez, 514 U.S. at - n. 6, 115 S.Ct. at 1648 n. 6 (Thomas, J., concurring). The majority’s reminder that “Congress specifically found that local and state law enforcement efforts had proved inadequate in capturing auto thieves[,]” Maj. Op. at 128 (citation omitted), *136provides no basis for upholding this encroachment upon the plenary police power of the States.10 The Lopez Court underscored the principle that federal efforts to occupy an area of the criminal law, where the States have already entered the field, “effects a change in the sensitive relation between federal and state criminal jurisdiction.” 514 U.S. at - n. 3, 115 S.Ct. at 1631 n. 3 (citation and internal quotation marks omitted). Lopez also reaffirms that Congress has no plenary police power authorizing every type of legislation. Id. at -, 115 S.Ct. at 1633 (citing U.S. Const. art. I, § 8); cf. id. at -, 115 S.Ct. at 1642 (Thomas, J., concurring) (“we always have rejected readings of the Commerce Clause and the scope of federal power that would permit Congress to exercise a police power; ... the Federal Government has nothing approaching a police power” (citing New York v. United States, 505 U.S. 144, 154, 112 S.Ct. 2408, 2417, 120 L.Ed.2d 120 (1992); Wirtz, 392 U.S. at 196, 88 S.Ct. at 2023-24; Jones & Laughlin, 301 U.S. at 37, 57 S.Ct. at 624; Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 435, 1 L.Ed. 440 (1793) (Iredell, J.))). If federalism means anything, it means that the federal government has nothing approaching a carte blanche. Today’s majority opinion pays no heed to these concerns of federalism, and I therefore, cannot agree that its result squares with Lopez. But there are additional reasons I must dissent.
As I have explained elsewhere, see United States v. Chesney, 86 F.3d 564, 575-76 (6th Cir.1996) (Batchelder, J., concurring in the result), the question of whether an intrastate activity, such as carjacking, has a substantial effect on interstate commerce becomes relevant to the inquiry of whether a congressional regulation of such activity is a valid exercise of Congress’s interstate-commerce powers only after it has once been determined that the activity is commercial or economic,11 or that the statute in question is “an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” Lopez, 514 U.S. at -, 115 S.Ct. at 1631. Though the majority holds that carjacking itself is commercial activity and that the statute criminalizing it is “an integral part of a comprehensive act aimed at deterring auto theft,” which I presume the majority believes to be a regulation of “economic activity,” too, I do not find the majority’s reasoning persuasive.
The only rationale that I can perceive in the majority opinion to justify the conclusion that carjacking is commercial or economic activity, is that the cost of this particular form of crime has an effect on interstate commerce. But the fact that criminal activity has an economic or social cost does not make that activity “commercial” or “economic.”12 If it did, Lopez could not have con-*137eluded that possession of a firearm in a school zone was not commercial or economic activity subject to Congress’s interstate-commerce power. See id. at -, 115 S.Ct. at 1630-31.13
Because carjacking is not commercial or economic activity, see Bishop, 66 F.3d at 602 (Becker, J., concurring in part and dissenting in part), and the carjacking statute is not an essential part of a larger regulation of economic activity, see id at 602-03 (Becker, J., concurring in part and dissenting in part), I would hold that the federal carjacking statute does not survive Lopez.14
. Lopez did not quote the next sentence in the Hodel concurrence, which states, “Congress’ findings must be supported by a ‘rational basis' and are reviewable by the courts." Hodel, 452 U.S. at 311, 101 S.Ct. at 2391 (Rehnquist, J., concurring in judgment) (citing Perez, 402 U.S. at 157, 91 S.Ct. at 1363 (Stewart, J., dissenting)). This may not have been an oversight, given the Court’s disinclination to apply this test. Cf. Lopez, 514 U.S. at -, 115 S.Ct. at 1630-34.
. Compare, e.g., U.S. Const. amend. XIV, § 1 (forbidding states from denying persons within their jurisdictions the equal protection of the laws) with Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896) (allowing race-based assignments of travelers to public accommodations), Brown v. Board of Educ., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (prohibiting race-based assignments of pupils to schools), Davis v. Board of School Comm'rs, 402 U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577 (1971) (mandating race-based assignments of pupils to schools), and Missouri v. Jenkins, 515 U.S. -, -, 115 S.Ct. 2038, 2061-73, 132 L.Ed.2d 63 (1995) (Thomas, J., concurring) (criticizing previous opinions — including the reasoning but not the result of Brown — which led to race-based assignments of pupils to schools).
. Similarly, the Gibbons statement that the interstate-commerce power,
like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution.... If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in Congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the constitution of the United Stales [,]
22 U.S. (9 Wheat.) at 196-97, 6 L.Ed. 23, by itself says nothing about what the limits on the interstate-commerce power are.
. Congressional regulation of an instrumentality is valid even if the threat comes from purely intrastate activity. See Lopez, 514 U.S. at -, 115 S.Ct. at 1629 (citing Shreveport Rate Cases, 234 U.S. 342, 34 S.Ct. 833, 58 L.Ed. 1341 (1914); Southern R. Co. v. United States, 222 U.S. 20, 32 S.Ct. 2, 56 L.Ed. 72 (1911); Perez, 402 U.S. at 150, 91 S.Ct. at 1359).
. I am aware of no case in which the Supreme Court has held that trains and airplanes are always instrumentalities of interstate commerce.
. And people, like cars, are "mobile” and have “the unique capacity to affect commerce at some future point in time.”
. The majority opinion also quotes Judge Becker to the effect that Congress may regulate objects which are "integrally related to an interstate commerce network....” Maj. Op. at 5 (quoting Bishop, 66 F.3d at 597 (Becker, J., concurring in part and dissenting in part)). Judge Becker was speaking, of course, about "objects such as rail-cars or railway bridges, which are integrally related to an interstate commerce networkf,]" Bishop, 66 F.3d at 597 (Becker, J., concurring in part and dissenting in part), and although I suppose that there might be instances in which cars could be "objects ... integrally related to an interstate commerce network[,]” there is nothing to indicate that, in enacting § 2119, Congress sought to prohibit carjacking of cars because they are "integrally related to an interstate commerce network” of one form or another.
. The “rational-basis" test has frequently deferred to the findings of Congress, see, e.g., Lopez, 514 U.S. at -, 115 S.Ct. at 1658 (Breyer, J., dissenting) (citing Hodel, 452 U.S. at 276-77, 101 S.Ct. at 2360-61); id. at ---, -, 115 S.Ct. at 1651-52, 1653 (Souter, J., dissenting) (citations omitted), but the word “rational” appears only once in the Lopez opinion. Even then, it is in dicta regarding the history of the Interstate Commerce Clause in which the Court recalled that it had "heeded” the "warning” of Jones & Laughlin to consider the Interstate Commerce Clause "in the light of our dual system of government” and not extend it to indirect and remote effects on interstate commerce. See id. at ---, 115 S.Ct. at 1628-29 (citing Jones & Laughlin, 301 U.S. at 37, 57 S.Ct. at 624; Darby, 312 U.S. at 119-20, 61 S.Ct. at 459-60; Wickard, 317 U.S. at 125, 63 S.Ct. at 89; Hodel, 452 U.S. at 276-80, 101 S.Ct. at 2360-61; Perez, 402 U.S. at 155-56, 91 S.Ct. at 1362; Katzenbach v. McClung, 379 U.S. 294, 299-301, 85 S.Ct. 377, 381-82, 13 L.Ed.2d 290 (1964); Heart of Atlanta Motel, 379 U.S. at 252-53, 85 S.Ct. at 354-55). The Court's only reference to the rational-basis test is in a paragraph which (1) could further .limit the interstate-commerce power of Congress, and (2) re-articulates not the "substantial-effects” test but the former "direct-indirect effects” test. Thus, by citing precedent which expanded the interstate-commerce power, see id.; cf. id. at -, 115 S.Ct. at 1654 (Souter, J., dissenting) (The Court's "distinction between what is patently commercial and what is not looks much like the old distinction between what directly affects commerce and what touches it only indirectly.”), the Court perhaps signals a return to an historical understanding of the Interstate Commerce Clause.
. Under the aggregation/class-of-activities analysis, one question for a court has been whether the class Congress sought to regulate was “within the reach of the federal power.” Maryland v. Wirtz, 392 U.S. 183, 192, 88 S.Ct. 2017, 2022, 20 L.Ed.2d 1020 (1968) (quoting Darby, 312 U.S. at 120-21, 61 S.Ct. at 460-61), overruled on other grounds, National League of Cities v. Usery, 426 U.S. 833, 855, 96 S.Ct. 2465, 2476, 49 L.Ed.2d 245 (1976), overruled on other grounds, Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 557, 105 S.Ct. 1005, 1021, 83 L.Ed.2d 1016 (1985). While courts have had no power to excise as trivial individual instances in a rationally defined class of activities, id. (citing Wickard, 317 U.S. at 127-28, 63 S.Ct. at 90-91; Polish Nat'l Alliance v. National Labor Relations Bd., 322 U.S. 643, 648, 64 S.Ct. 1196, 1199, 88 L.Ed. 1509 (1944); McClung, 379 U.S. at 301, 85 S.Ct. at 382), cited in Lopez, 514 U.S. at -, 115 S.Ct. at 1650 (Thomas, J., concurring), and Perez, 402 U.S. at 154, 91 S.Ct. at 1361, this does not mean that “Congress may use a relatively trivial impact on commerce as an excuse for broad general regulation of state or private activities.” Id. at 196 n. 27, 88 S.Ct. at 2024 n. 27. It may not. See id. “The Court has said only that where a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence." Id.
While the aggregation/class-of-activities analysis remains, we do know that the interstate-commerce power is limited, in addition to the ways already discussed, at least to this extent: The class of activities must be within the reach of the federal power, and the class must be rationally defined. See id. at 192, 88 S.Ct. at 2022 (citations omitted).
*135Aggregation has raised concerns, because "one always can draw the circle broadly enough to cover an activity that, when taken in isolation, would not have substantial effects on commerce.” Lopez, 514 U.S. at -, 115 S.Ct. at 1650 (Thomas, J., concurring). Thus, the renewed recognition that the Interstate Commerce Clause has outer limits, id. at -, 115 S.Ct. at 1628 (citing Jones & Laughlin, 301 U.S. at 37, 57 S.Ct. at 624; Darby, 312 U.S. at 119-20, 61 S.Ct. at 459-60; Wickard, 317 U.S. at 125, 63 S.Ct. at 89); see generally Gibbons, 22 U.S. (9 Wheat.) at 194-96, quoted in Lopez, 514 U.S. at -, 115 S.Ct. at 1627, may return us to former conclusions with which more recent departures dealing with aggregation and classes of activities conflict. For example, the days of believing that Congress has an interstate-commerce power never yet exceeded, Wickard, 317 U.S. at 120, 63 S.Ct. at 87 (citing Gibbons, 22 U.S. (9 Wheat.) at 194, 195); see Pennsylvania v. Union Gas Co., 491 U.S. 1, 20, 109 S.Ct. 2273, 2284, 105 L.Ed.2d 1 (1989) (citations omitted), overruled by Seminole Tribe, 517 U.S. at -, 116 S.Ct. at 1128, a notion practically irreconcilable with a federal government of limited and enumerated powers, have passed. Although Seminole Tribe did not mention this notion in overruling Union Gas, it was one of the building blocks Union Gas used for the holding that Seminole Tribe knocked down. Compare Union Gas, 491 U.S. at 19-24, 109 S.Ct. at 2284-86, with Seminole Tribe, 517 U.S. at ---, 116 S.Ct. at 1125-28.
. Whatever its accuracy with regard to “auto thieves" in general, the facts of this case at least call into question the accuracy of Congress's finding as it relates to carjackings. Officers with the Cleveland Police Department — not the "feds” — arrested McHenry for the three carjackings he committed. See United States v. McHenry, Nos. 93-3935, 93-4041, 1994 WL 560927, at *1 (6th Cir. Oct.11, 1994).
. Any doubt about the existence of this restriction is put to rest by the Supreme Court's repeated use of these terms, see, e.g., Lopez, 514 U.S. at -, 115 S.Ct. at 1630 (“First, we have upheld a wide variety of congressional Acts regulating intrastate economic activity where we have concluded that the activity substantially affected interstate commerce.”); id. ("Where economic activity substantially affects interstate commerce, .... ”); id. ("Even Wickard ... involved economic activity....”); id. at ---, 115 S.Ct. at 1630-31 ("Section 922(q) ... has nothing to do with 'commerce' or any sort of economic enterprise....”), and by the Interstate Commerce Clause itself. See, e.g., id. at - n. 9, 115 S.Ct. at 1650 n. 9 (Thomas, J., concurring) (" ' "commercial” character' is not only a natural but an inevitable ground for Interstate Commerce Clause distinction” (quoting id. at -, 115 S.Ct. at 1654 (Souter, J., dissenting))).
.I do not necessarily embrace Judge Becker's view that, because it is not consensual, carjacking is not "commercial activity.” See Bishop, 66 F.3d at 602 (Becker, J., concurring in part and dissenting in part). However, as the Lopez Court pointed out, "commerce” has been defined in terms of "intercourse” since Gibbons, 22 U.S. (9 Wheat.) at 189-90. Lopez, 514 U.S. at -, 115 S.Ct. at 1626-27. Virtually every definition of “intercourse” (except one which defines "intercourse” as "commerce,” Black's Law Dictionary 811 (6th ed. 1990)) involves the notion of "exchange,” i.e., the trading, bartering or swapping of one thing for something of roughly equivalent value. One dictionary defines “intercourse” as “communication or dealings between or among *137people, countries, etc.; interchange of products, services, ideas, feelings, etc.” and "interchange” as "to give and take mutually; exchange ... to put (each of two things) in the other's place...." Webster's New World Dictionary of the American Language 733, 734 (2d ed. 1972); see also Lopez, 514 U.S. at -, 115 S.Ct. at 1643-44 (Thomas, J., concurring). Few would argue, I suppose, that carjacking involves any kind of exchange.
Similarly, “economics" is generally defined as "the science that deals with the production, distribution, and consumption of wealth, and with the various related problems of labor, finance, taxation, etc.;” and “economic” as “of or having to do with the management of the income, expenditures, etc. of a household, private business, community, or government ... of or having to do with the production distribution, and consumption of wealth ... of or having to do with economics.... ” Webster's New World Dictionary of the American Language 442. The fact that criminal activity has economic costs does not elevate the criminal activity into economic activity-
. Even if carjacking were "commercial” or "economic” activity, that would not necessarily mean § 2119 is a valid exercise of Congress’s authority to regulate commercial or economic activities substantially affecting interstate commerce. See United States v. Wall, 92 F.3d 1444, 1464 (6th Cir.1996) (Boggs, J., concurring in part and dissenting in part) (noting that Lopez "could not have intended to imply that all commercial activities could be regulated” (citation omitted)); see also Lopez, 514 U.S. at -, 115 S.Ct. at 1633.
. In addition, the intimation in the majority opinion that the presence of a jurisdictional element in the federal carjacking statute bespeaks its constitutionality, see Maj. Op. at 129 n. 3 (citation omitted), is misplaced. The mere presence of a jurisdictional element in § 2119 cannot render it a constitutional exercise of Congress’s authority to regulate activities substantially affecting interstate commerce where there is no sustainable argument that the activities are themselves “commercial” or “economic” or that the statute is "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” See Chesney, 86 F.3d at 575-76, 579-81 (Batchelder, J., concurring in the result).