dissenting:
In United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), the Court reaffirmed the fundamental principle that the Constitution established a national government of enumerated and limited powers. Accordingly, the Court emphasized that the power granted to Congress under the Commerce Clause is subject to strict limits, and it is the duty of the courts to police those limits and thereby preserve the federal system.
Therefore, laws enacted under the aegis of the Commerce Clause “ ‘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.’” 514 U.S. at 557, 115 S.Ct. at 1628-29 (quoting NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37, 57 S.Ct. 615, 624, 81 L.Ed. 893 (1937)). Lopez is a landmark, signaling the revival of federalism as a constitutional principle, and it must be acknowledged as a watershed decision in the history of the Commerce Clause.1
The lessons of Lopez are lost, however, in the instant ease. Rather than rigorously enforcing the limitations on federal power, as Lopez commands, the panel majority upholds the constitutionality of a statute that contains no reference to interstate commerce, regulates an activity that is not commercial, and invades the field of family law, a traditional area of exclusive state sovereignty. Therefore, I conclude that the Child Support Recovery Act (“CSRA”) flouts the limitations on the Commerce Clause, flies in the face of Lopez, and threatens to “ ‘obliterate the distinction between what is national and what is local and create a completely centralized government.’” Id. at 557, 115 S.Ct. at 1629.
This is a difficult area, and the panel majority has made a diligent effort to reconcile the relevant jurisprudence as it applies to this case. Disagreeing with the majority’s conclusion, however, I respectfully dissent.
I.
As the Lopez Court recognized, see id. at 551-554, 115 S.Ct. at 1626-27, the seminal *1234case describing the commerce power is Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L.Ed. 23 (1824), in which Chief Justice Marshall, writing for the Court, defined the appropriate methodology for reviewing an act of Congress as asking (1) whether the subject of the legislation is commerce; (2) if so, whether the commerce affects other states; and (3) whether the legislation regulates the commerce. Id. at 189-97. In Lopez, the Court identified three broad categories of activities that Congress may regulate under the Commerce Clause. First, it may regulate the use of the channels of interstate commerce. Second, it is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce. Finally, it may regulate those activities that “substantially affect” interstate commerce. Id. 514 U.S. at 557-560, 115 S.Ct. at 1629-30. None of these categories of commerce legislation, however, encompasses the CSRA.
A.
Although the authority to regulate intrastate activities that “substantially affect” interstate commerce has provided the primary source for the dramatic expansion of federal power in this century, as well as the foundation for recent Commerce Clause jurisprudence, the majority wisely declines to defend the constitutionality of the CSRA by claiming that unpaid child support “substantially affects” interstate commerce. In Lopez, the Supreme Court disavowed the use of speculative economic theories to prove that a given activity “substantially affects” interstate commerce, as the employment of such theories would permit Congress to “regulate any activity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example.” Id. at 564, 115 S.Ct. at 1632. Yet that is precisely what the CSRA purports to do. Consequently, the constitutionality of the CSRA cannot be sustained under the “affecting commerce” prong.
The “affecting commerce” doctrine is a judicial invention, rather than a faithful interpretation of the constitutional text. The Commerce Clause authorizes Congress to regulate commerce among the several states, not an activity that affects commerce. Likewise, Gibbons explains that the test of a statute enacted under the Commerce Clause is whether the legislation regulates commerce, not whether it regulates some activity that affects commerce. Indeed, Gibbons asks whether the commerce affects other states, not whether the activity affects interstate commerce. See Gibbons, 22 U.S. at 194-95.2 Nevertheless, the Supreme Court has presided over a dramatic expansion of the Commerce Clause in this century, authorizing the federal government to regulate any activity that “substantially affects” interstate commerce. See, e.g., United States v. Darby, 312 U.S. 100, 118-23, 61 S.Ct. 451, 459-61, 85 L.Ed. 609 (1941); Wickard v. Filburn, 317 U.S. 111, 125, 63 S.Ct. 82, 89, 87 L.Ed. 122 (1942).3
In Lopez, the Court acknowledged that the “affecting commerce” doctrine is a legitimate interpretation of the Commerce Clause only insofar as it preserves some limit on the scope of federal power, vindicating the principle that the Constitution established a government of enumerated powers and preserving the distinction between that which is truly national and that which is indeed local. Id., 514 U.S. at 567, 115 S.Ct. at 1634. To illustrate the limitations of the commerce power, the Court disavowed any use of the “affecting commerce” doctrine that would justify federal intervention in the field of family law. See id. at 563, 115 S.Ct. at 1632.4 Yet the CSRA occasions just such an intrusion, subverting the federal system by impos*1235ing federal penalties for the failure to pay state-ordered child support.
The Lopez Court warned that if Congress can invoke the “affecting commerce” doctrine to invade traditional areas of state sovereignty, such as family law, “we are hard-pressed to posit any activity by an individual that Congress is without power to regulate.” Id. at 564, 115 S.Ct. at 1632. Accordingly, the Court recognized that such an expansive interpretation of the Commerce Clause “would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.” Id. at 567, 115 S.Ct. at 1634.
Because the Supreme Court has abjured the federal regulation of family law under the guise of the “affecting commerce” doctrine, the panel majority is forced to defend the constitutionality of the CSRA by claiming that the act satisfies the first two prongs of Lopez. But federal criminalization of the failure to make child support payments regulates neither the channels nor the instrumen-talities of interstate commerce, nor persons or things in interstate commerce.
B.
The CSRA imposes criminal penalties on parents who fail to satisfy an interstate child support obligation. If the payment of child support constituted “commerce,” therefore, it would necessarily follow that interstate child support payments are “things in interstate commerce,” within the meaning of Lopez. For purposes of the Commerce Clause, however, child support-payments are not “commerce.”
The majority dismisses this objection with a wave of the hand, assuming that court-ordered child support payments are “commerce”: “The payment of support obligations is indeed commercial; it involves the transfer of money from one hand to another. In fact, nothing could be more commercial.” Not surprisingly, the majority can offer no authority to support this ipse dixit, which would permit Congress to regulate all financial transactions. Such an unlimited definition would swell the Commerce Clause far beyond the traditional context of “commerce.” 5 In fact, “commerce” requires more than a mere transfer of wealth, as the history of Commerce Clause jurisprudence demonstrates.
In Gibbons, Chief Justice Marshall rejected a narrow definition that would limit the term “commerce” to traffic, buying and selling, and the interchange of commodities. Id. at 189. Instead, Gibbons defined “commerce” broadly to include “the commercial intercourse between nations, and parts of nations.” Id. at 189-90. Even under this broad definition, however, the Commerce Clause does not grant Congress carte blanche. To the contrary, Congress may regulate only commercial intercourse, so its power is confined to the regulation of trade, business transactions, and economic activity.6 Therefore, in order to constitute a “person or thing in interstate commerce,” subject to direct regulation under the Commerce Clause, a person or thing must be engaged in “commercial intercourse.”7
*1236We should interpret terms such as “commerce” in the context of the common understanding of them at the time they were written. It is axiomatic that the word “commerce” is, and has always been, tantamount to “trade,” the exchange of goods and services by purchase and sale. See, e.g., Black’s Law Dictionary 269 (6th ed.1990); Webster’s New Int’l Dictionary 538 (2d ed.1958). The cornerstone of the commerce power, ever since the founding era, has been the power to regulate trade. “Whatever other meanings ‘commerce’ may have included in 1787, the dictionaries, encyclopedias, and other books of the period show that it included trade: business in which persons bought and sold, bargained and contracted. And this meaning has persisted to modern times.” United States v. South-Eastern Underwriters Ass’n, 322 U.S. 533, 539, 64 S.Ct. 1162, 1166, 88 L.Ed. 1440 (1944).8
Indeed, the essential characteristic of “commerce” continues to be its relationship to business and trade. The Supreme Court recently reaffirmed that a party is “in commerce” when it is “ ‘directly engaged in the production, distribution, or acquisition of goods and services in interstate commerce.’ ” United States v. Robertson, 514 U.S. 669, 671, 115 S.Ct. 1732, 1733, 131 L.Ed.2d 714 (1995) (quoting United States v. American Bldg. Maintenance Indus., 422 U.S. 271, 283, 95 S.Ct. 2150, 2157, 45 L.Ed.2d 177 (1975)).9 In order to constitute “a thing in interstate commerce,” therefore, subject to direct regulation under the Commerce Clause, the subject of federal regulation must be engaged in “commerce,” which is tantamount to “commercial intercourse” or “trade.”
Child support payments, accordingly, are not “commerce.” They are unilateral obligations, not bilateral commercial transactions; they do not involve trade; and they do not entail the purchase or sale of goods or services. As the plain language of the statute attests, the CSRA regulates only child support obligations required pursuant to a court order or an order of an administrative process, not a private contract. See 18 U.S.C. § 228(d)(1)(A). Therefore, payment of child support is not conditioned on the performance of a reciprocal duty by the obli-gee, nor does it benefit the obligor. Consequently, child support payments do not entail a quid pro quo, the defining characteristic of a commercial transaction.
In short, child support payments include none of the elements of commerce, but merely represent transfers of wealth pursuant to a court order. Like the Gun Free School Zones Act invalidated in Lopez, therefore, the CSRA is “a criminal statute that by its terms has nothing to do with ‘commerce’ or any sort of economic enterprise, however broadly one might define those terms.” See Lopez, 514 U.S. at 561-562, 115 S.Ct. at 1630-31.
The conclusion that child support payments are not “commerce” requires us to define the boundaries of the Commerce Clause, distinguishing between “commercial” and “noncommercial” activities. In Lopez, the Court acknowledged that distinctions between “commercial” and “noncommercial” activities are often problematic and may result in legal uncertainty in some cases. Id. at 566, 115 S.Ct. at 1633. Nevertheless, this uncertainty is inherent in the federal system, and it is the duty of the courts to interpret the Constitution.
The Constitution mandates this uncertainty by withholding from Congress a plenary police power that would authorize enactment of every type of legislation. Congress has operated within this framework of legal uncertainty ever since this Court determined that it was the judiciary’s duty “to say what the law is.” Any possible benefit from eliminating this “legal uncer*1237tainty” would be at the expense of the Constitution’s system of enumerated powers.
Id. (citations omitted). Accordingly; we cannot abdicate our duty to draw lines and enforce the outer limits of the Commerce Clause, even if this line-drawing occasions some legal uncertainty.
Fortunately, although it may be hard for courts to distinguish between “commercial” and “noncommercial” activities in some cases, this is not one of them. We need not invoke technical distinctions to determine whether child support payments constitute “commerce,” as these payments do not share the essential characteristic of commerce — the relationship to trade and commercial intercourse. Mindful of the legal uncertainty inherent in the definition of “commerce,” Justice Holmes once observed that “commerce among the States is not a technical legal conception, but a practical one, drawn from the course of business.” Swift & Co. v. United States, 196 U.S. 375, 398, 25 S.Ct. 276, 280, 49 L.Ed. 518 (1905). Child support payments are outside the “course of business” and cannot be defined as “commerce.” Accordingly, even under a practical interpretation of “commerce,” interstate child support payments cannot reasonably be classified as “things in interstate commerce.”10
C.
Having concluded that child support payments are not “things in interstate commerce” and do not “substantially affect” interstate commerce, I must consider the last possible ground for regulation of child support payments under the Commerce Clause: use of the channels or instrumentalities of interstate commerce. The majority concludes that the CSRA constitutes a valid regulation of such “channels” and “instru-mentalities” because the statute imposes criminal penalties only for the breach of interstate child support obligations. I respectfully disagree.
The CSRA prohibits the willful failure to satisfy a child support obligation “with respect to a child who resides in another State.” 18 U.S.C. § 228(a). By its express terms, the statute regulates interstate transactions, not the channels or instrumentalities of interstate commerce. There is no mention of commerce, nor is there a jurisdictional nexus to interstate commerce. Accordingly, the statute effectively requires only diversity of citizenship among the parties, reducing what is often called the “Interstate Commerce Clause”11 to nothing more than the “Interstate Clause.”
The majority agrees that mere diversity of citizenship is not enough to authorize federal regulation under the Commerce Clause, noting that such a rule “would unwittingly open the floodgates to allowing Congress to regulate any and all activity it so desired, even those activities traditionally reserved for state regulation, so long as opposing parties are diverse.” This defect is cured, according to the majority, by the fact that the child support order “can be satisfied normally by a payment that necessarily must move in interstate commerce.” Consequently, the majority concludes, interstate child support payments necessarily invoke the channels of, and flow in, interstate commerce. Not so.
Regardless of whether interstate child support payments will “normally” travel in interstate channels (as the majority assumes), the CSRA does not require the use of channels *1238or instrumentalities of interstate commerce as a prerequisite to federal regulation. Unlike statutes that contain a jurisdictional nexus element “which would ensure, through case-by-case inquiry, that the [activity] in question affects interstate commerce,” Lopez, 514 U.S. at -, 115 S.Ct. at 1631, the CSRA regulates every interstate obligation, without exception.
By its express terms, therefore, the CSRA does not regulate the use of the channels or instrumentalities of interstate commerce, but indiscriminately regulates all interstate child support payments. Accordingly, the CSRA does not constitute a permissible regulation of the channels of interstate commerce. See United States v. Kirk, 105 F.3d 997, 1008 (5th Cir.1997) (en banc) (opinion of Jones, J.) (stating that the first Lopez category involves statutes that are distinguished by express jurisdictional nexus requirements).12
Because the CSRA does not include an express jurisdictional nexus requirement, but instead regulates all interstate child support *1239payments, it is constitutional only if state borders are characterized as “channels” of interstate commerce, rendering all interstate activity subject to federal legislation.13 The majority is obligated to endorse this rationale, stating that “Bailey’s obligation to send money across state lines immerses him in commerce among the several states.” This definition, however, pares the “Interstate Commerce Clause” to the “Interstate Clause,” belying the claim that the CSRA is not solely a diversity statute. Such an interpretation of the Commerce Clause would grant Congress carte blanche to regulate all transactions among diverse parties, “opening the floodgates” to the creation of a federal police power.14
Furthermore, this court may not cure the constitutional defect in the CSRA by taldng “judicial notice” that child support payments must necessarily travel in the channels of interstate commerce. There is nothing in the record to demonstrate that child support payments must necessarily use such channels, nor does the record demonstrate that the child support order in the instant ease required Mr. Bailey to use them. To assume that interstate child support payments must necessarily utilize the channels or instrumen-talities of interstate commerce is to beg the question, abdicating the judicial obligation to enforce the outer limits of the Commerce Clause. See Lopez, at -, 115 S.Ct. at 1633.
Although we strive to interpret statutes in order to avoid an unconstitutional construction, it is also true that this canon of construction is “ ‘not a license for the judiciary to rewrite language enacted by the legislature.’ ” Chapman v. United States, 500 U.S. 453, 464, 111 S.Ct. 1919, 1926, 114 L.Ed.2d 524 (1991) (quoting United States v. Monsanto, 491 U.S. 600, 611, 109 S.Ct. 2657, 2664, 105 L.Ed.2d 512 (1989)). The CSRA does not regulate the channels or instrumentalities of interstate commerce, and therefore it exceeds the Commerce Clause. This court may not cure the constitutional defect by assuming the necessary relationship to interstate commerce and thereby abdicating its constitutional duty.
The CSRA is redolent of a police power, not a responsible and reflective exercise of legislative authority appropriate to a government of enumerated powers. Accordingly, the CSRA is not a constitutional exercise of the commerce power. To uphold the CSRA, “a purely criminal law, with no nexus to interstate commerce, whose enforcement intrudes upon traditional police powers of the states, would convert the commerce power into a reserved ‘general federal police power.’ ” Kirk, 105 F.3d at 1016 (opinion of Jones, J.).15
*1240II.
The CSRA contains no express jurisdictional nexus requirement, regulates an activity that is not commercial, and invades the field of family law, a traditional area of exclusive state sovereignty. Therefore, with the revival of federalism as a constitutional value in Lopez, I conclude that the statute cannot survive constitutional scrutiny. So, I respectfully dissent from the diligent efforts of the panel majority to confront this difficult issue of constitutional interpretation.
. This court has recognized that Lopez is a landmark in constitutional law, even if the judges have disagreed as to the precise boundaries of the Commerce Clause. Compare United States v. Kirk, 105 F.3d 997, 999 (5th Cir.1997) (en banc) (opinion of Higginbotham, J.) (recognizing that “ 'if Lopez means anything, it is that Congress’s power under the Commerce Clause must have some limits’ '•') (quoting United States v. Rybar, 103 F.3d 273, 291 (3d Cir.1996) (Alito, J., dissenting)) with id. at 1010 (opinion of Jones, J.) (recognizing that Lopez establishes the "outer boundary on Congress's criminal jurisdiction under the Commerce Clause”).
. Neither the constitutional text nor Gibbons uses the term "interstate,” but I will employ it, as Lopez and other construing opinions have used it almost universally.
. See Lopez, 514 U.S. at 584—602, 115 S.Ct. at 1642-50 (Thomas, J., concurring) (discussing the evolution of the "affecting commerce” doctrine).
. Indeed, even the dissenters in Lopez agreed that family law is beyond the power of Congress to regulate under the Commerce Clause. See, e.g., Lopez, at 623-624, 115 S.Ct. at 1661 (Breyer, J., dissenting).
. Under this definition, for example, Congress would be free to regulate alimony, wills and estates, gift promises, and charitable contributions, invading traditional areas of state sovereignty under the guise of the Commerce Clause.
. See Jordan v. Toshiro, 278 U.S. 123, 127-28, 49 S.Ct. 47, 48-9, 73 L.Ed. 214 (1928) (noting that “for more than a century it has been judicially recognized that in a broad sense [commerce] embraces every phase of commercial and business activity and intercourse”); Weiton v. Missouri, 91 U.S. 275, 280, 23 L.Ed. 347 (1875) (noting that commerce "comprehends intercourse for the purposes of trade in any and all its forms, including the transportation, purchase, sale, and exchange of commodities between the citizens of our country and the citizens or subject of other countries, and between the citizens of different States”).
. This is not to say that non-commercial activities are beyond the reach of the Commerce Clause, but merely that they are not interstate commerce per se and cannot be regulated directly as "things in interstate commerce.” To regulate such non-commercial activities, therefore, Congress must legislate indirectly, pursuant to the Lopez categories (e.g., the channels of interstate commerce, the instrumentalities of interstate commerce, or activities that " ‘substantially affect’ interstate commerce”). In this respect, Lopez is consistent with prior caselaw in departing from Gibbons and from the constitutional text in that, as I have pointed out, neither the text *1236nor Gibbons refers to activity that affects interstate commerce.
. See also Lopez, 514 U.S. at 585, 115 S.Ct. at 1643 (Thomas, L, concurring) (“At the time the original Constitution was ratified, ‘commerce’ consisted of selling, buying, and bartering, as well as transporting for these purposes.").
. Likewise, the court recently observed that a party is deemed to be “engaged in commerce” if it is a purchaser or provider of “goods and services.” Camps Newfound/Owatonna, Inc. v. Town of Harrison, - U.S. -,-, 117 S.Ct. 1590, 1596, 137 L.Ed.2d 852.
. I am at a loss to understand the suggestion that the child support obligation itself, rather than the child support payments, might constitute a "thing in interstate commerce.” While an intangible right, such as a commercial debt, may constitute the object of a commercial transaction, it is not a "thing” that “moves in interstate commerce.” To suggest otherwise is to transform the Commerce Clause into an exercise in metaphysics.
Apparently, the majority means to suggest that the child support obligation is interstate commerce per se and is therefore a “thing in interstate commerce.” This conclusion is belied, however, hy the fact that child support payments are not “commerce.” Accordingly, the child support obligation cannot be a “thing in interstate commerce.”
. See, e.g., Seminole Tribe v. Florida, - U.S. -,-, 116 S.Ct. 1114, 1125-27, 134 L.Ed.2d 252 (1996); Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192, 109 S.Ct. 1698, 1715, 104 L.Ed.2d 209 (1989); Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 154, 102 S.Ct. 894, 910, 71 L.Ed.2d 21 (1982).
. The constitutional significance of the jurisdictional nexus requirement cannot be overstated. If an activity is commercial, the act of crossing state lines makes it interstate commerce per se, subject to direct federal regulation. In such cases, no express jurisdictional nexus must be included in the statute, because there is no need to establish the constitutional predicate for federal regulation. As I have noted, however, child support payments are not commercial, and hence are not subject to direct federal regulation.
If an activity is not commercial, the mere act of crossing state lines does not expose it to direct federal regulation, as it is not interstate commerce per se. In order to justify federal regulation of such non-commercial activity, Congress must provide an express jurisdictional nexus to interstate commerce. Such a jurisdictional nexus provides the sole constitutional foundation for federal regulation.
Hence, as Lopez demonstrates, Congress may regulate the use of the channels or instrumen-talities of interstate commerce, or economic activities that "substantially affect" interstate commerce, in order to justify the regulation of activities that are not inherently commercial. The jurisdictional nexus is the source of this constitutional justification. See, e.g., 18 U.S.C. § 1073 (prohibiting the use of the channels of interstate commerce by flight to avoid prosecution or the obligation to testify in court); 18 U.S.C. § 1201 (prohibiting the use of the channels of interstate commerce to transport an ab-ductee across state lines); 18 U.S.C. §§ 2312-15 (prohibiting the shipment of stolen goods in interstate commerce); 18 U.S.C. § 1341 (prohibiting use of the mails to perpetrate fraud); see also United States v. Orito, 413 U.S. 139, 140 n. 1, 93 S.Ct. 2674, 2676 n. 1, 37 L.Ed.2d 513 (1973) (noting that 18 U.S.C. § 1462 prohibits transportation of obscene material in interstate commerce); Brooks v. United States, 267 U.S. 432, 435, 45 S.Ct. 345, 346, 69 L.Ed. 699 (1925) (noting that the National Motor Vehicle Theft Act prohibits the transportation of stolen vehicles in interstate commerce); United States v. Hill, 248 U.S. 420, 422, 39 S.Ct. 143, 144, 63 L.Ed. 337 (1919) (noting that the Reed Amendment prohibits transportation of intoxicating liquor in interstate commerce); Caminetti v. United States, 242 U.S. 470, 491-92, 37 S.Ct. 192, 196, 61 L.Ed. 442 (1917) (noting that the Mann Act prohibits the transportation of women in interstate commerce for immoral purposes); Hoke v. United States, 227 U.S. 308, 317-18, 33 S.Ct. 281, 281-82, 57 L.Ed. 523 (1913) (same).
If a federal statute includes such an express jurisdictional nexus, providing a constitutional foundation for the act, the courts will not inquire into the motives underlying congressional regulation of non-commercial-activity. " '[T]he authority of Congress to keep the channels of interstate commerce free from immoral and injurious uses has been frequently sustained, and is no longer open to question.’ ” Heart of Atlanta Motel v. United States, 379 U.S. 241, 256, 85 S.Ct. 348, 356, 13 L.Ed.2d 258 (1964) (quoting Caminetti, 242 U.S. at 491, 37 S.Ct. at 196); accord United States v. Darby, 312 U.S. 100, 114, 61 S.Ct. 451, 456, 85 L.Ed. 609 (1941). In the absence of such an express jurisdictional element, however, Congress is not empowered to exercise a federal police power over non-commercial activities.
As I have explained, interstate child support payments are not "commerce,” and are not subject to direct federal regulation as interstate commerce per se. Accordingly, the statute must require an express jurisdictional nexus to provide the constitutional basis for federal regulation of this non-commercial activity. It does not. The absence of an express jurisdictional nexus distinguishes the CSRA from valid regulations of the channels and instrumentalities of interstate commerce. Absent an express jurisdictional nexus, the CSRA is unconstitutional.
Finally, there is nothing in the present record to indicate whether any use of interstate channels or instrumentalities was either contemplated or required. In this regard, I very much question the panel majority’s unusual statement that "Bailey made use of the interstate channels, as contemplated by the CSRA, the moment he moved away from Texas without fulfilling his child support obligation; he himself thereby placed the debt in the flow of interstate commerce.” By this reasoning, any person moving to another state ipso facto federalizes all his financial obligations, and-"utilizes" the channels of interstate commerce, merely by crossing a state line.
. As stated above, only activities that are inherently commercial may be regulated solely on the basis that the subject of federal regulation has crossed state lines, rendering it interstate commerce per se. Non-commercial activities, such as child support payments, are subject to federal regulation only if they use a channel or instrumentality of interstate commerce, or "substantially affect” interstate commerce. Absent a jurisdictional nexus, therefore, the CSRA is constitutional only if we assume that state borders are, by definition, "channels” of interstate commerce. This expansive interpretation would effectively nullify the phrase "channels of interstate commerce,” however, which necessarily implies something less than state borders, and would expose all interstate activity to a federal police power.
. Although it traces its lineage to cases such as Champion v. Ames, 188 U.S. 321, 23 S.Ct. 321, 47 L.Ed. 492 (1903) (upholding the constitutionality of the Lottery Act, basing the power to prohibit the interstate sale of lottery tickets on the purpose, i.e., to proscribe evil conduct), the notion of a Commerce Clause-based federal police power gained full steam in Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971), which upheld application of a federal anti-loan-shark statute to local activities without any showing of an interstate nexus or effect. This jurisprudence unfortunately blurred the distinction between regulating commerce and exercising the police power to eliminate “evils” that threaten the general welfare, i.e., the distinction between a regulatory offense and creating a "true” crime.
.Because I conclude that the absence of a jurisdictional nexus fatally undermines the constitutionality of the CSRA, I do not reach the question whether Congress is empowered to regulate the failure to engage in interstate commerce. Nevertheless, I must express my misgivings about this creative interpretation of the Commerce Clause.
It is counterintuitive to suppose that by empowering Congress "to regulate commerce ... among the several states,” the framers of the *1240Constitution envisioned federal criminal prosecutions for the failure to utilize an interstate instrumentality, i.e., the failure to send a support payment (whether through the mails or by some other interstate means), as a valid regulation of the use of the channels of interstate commerce. This interpretation turns the original understanding of the Commerce Clause on its head.
Furthermore, the cases cited by the majority do not support the proposition that Congress is authorized to regulate the failure to use channels of interstate commerce. Upon close inspection, each case holds that Congress may regulate the active obstruction of interstate commerce and interference with the flow of interstate commerce. Such protective legislation is fundamentally different from the more radical proposition that Congress is empowered to regulate the passive failure of individuals to engage in interstate commerce. See, e.g., Heart of Atlanta Motel, 379 U.S. at 253, 85 S.Ct. at 355 (upholding the Civil Rights Act of 1964 because Congress may prohibit racial discrimination that obstructs the flow of interstate commerce); United States v. Green, 350 U.S. 415, 420, 76 S.Ct. 522, 525, 100 L.Ed. 494 (1956) (upholding the Hobbs Act because Congress may prohibit violent actions that interfere with interstate commerce); Standard Oil Co. v. United States, 221 U.S. 1, 68, 31 S.Ct. 502, 518, 55 L.Ed. 619 (1911) (upholding the Sherman Act because Congress may prohibit restraints of trade that obstruct interstate commerce).
Finally, insofar as these protective statutes regulate activities that obstruct the flow of interstate commerce, they are properly classified under the third prong of Lopez, which permits Congress to regulate economic activities that “substantially affect” interstate commerce. While the obstruction of interstate commerce is not a "use" of the channels of interstate commerce, under the common meaning of "use,” such interference does exert a "substantial effect” on commerce. I have already explained, however, that the CSRA cannot be upheld as an activity that "substantially affects" interstate commerce, and the majority makes no effort to defend the act under this theory. Accordingly, the cases cited by the majority do not demonstrate that Congress is empowered to regulate the failure to use channels of interstate commerce.