Posted on 06/09/2005 9:58:33 AM PDT by P_A_I
Forbidding, interdicting, and hindering are not the same thing as regulating, or "making regular," or adjusting by rule or method. It does not tell you how to do something, but instead tells you that you may not do it at all. -- "
How many times must all levels of our governments be told that they do not have the power to prohibit?
All forms of activity that require a license are prohibited. A license is defined as permission to do something which would otherwise be illegal. So driving is prohibited.
Much indeed is it to be wished, as I conceive, that no regulations of trade, that is to say, no restriction or imposts whatever, were necessary. A perfect freedom is the System which would be my choice. But before such a system will be eligible perhaps for the U. S. they must be out of debt; before it will be attainable, all other nations must concur in it.
" --- The power to regulate is, in essence [& within reasonable, constitutional bounds], the power to say, "if you want to do something, here is how you must [can] do it."
--- I added 'within reason' and 'can' rather than must..
-- I agree, licensing is just another way to prohibit, unless it is 'shall issue' legislation.
A driver's license is to prove that you have fulfilled the "regulation" requirements the state imposes for driving, in other words that you took the test, and you have paid the "tax," as well.
You are not prohibited from driving without a license. If you do drive without a license and get caught, you are only going to be fined for not participating in the "regulation" process.
Otherwise, if driving is "prohibited" without a license then each driver would have to prove to "officials" possession of a valid license before starting their auto.
I assume you have read his book "Restoring the Lost Constitution, A Presumption of Liberty."
I have three times.
What is amazing to me is some many "Freepers" when confronted with Prof. Barnett's "presumption of liberty," recoil in fear of liberty.
The most famous person of all who recoils in such fear is Rush Limbaugh.
I had him for a Constitutional law seminar where we basically read drafts of the manuscript for the book and helped him write it by discussing and providing critique. Best class I ever took.
What is amazing to me is some many "Freepers" when confronted with Prof. Barnett's "presumption of liberty," recoil in fear of liberty. The most famous person of all who recoils in such fear is Rush Limbaugh.
Limbaugh is an intellectual featherweight who is gradually learning [from his own problems] that prohibitionism is a political disease of both left & right.
-- One that could bring down this Republic if it spreads.
Posted by Ken H to Drammach
On News/Activism 06/09/2005 12:37:12 PM CDT · 605 of 611
(My prior post:)The commerce clause, concerning regulating commerce "among the several states" was meant to encourage free trade, not prohibit commerce..
(KenH reply:) I'm sure James Madison would agree.
"Yet it is very certain that it [the power to regulate commerce among the several States] grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government"
--James Madison
Thanks for the comment.
Due to its length, I excerpted from his explanation of the power to regulate trade with foreign countries. The entire document can be read here:
http://press-pubs.uchicago.edu/founders/documents/a1_8_3_commerces18.html
James Madison to Joseph C. Cabell
18 Sept. 1828 Writings 9:316--40
1. The meaning of the Phrase "to regulate trade" must be sought in the general use of it, in other words in the objects to which the power was generally understood to be applicable, when the Phrase was inserted in the Constn.
2. The power has been understood and used by all commercial & manufacturing Nations as embracing the object of encouraging manufactures. It is believed that not a single exception can be named. [end of excerpt]
Now on to the States:
James Madison to Joseph C. Cabell
13 Feb. 1829 Letters 4:14--15
For a like reason, I made no reference to the "power to regulate commerce among the several States." I always foresaw that difficulties might be started in relation to that power which could not be fully explained without recurring to views of it, which, however just, might give birth to specious though unsound objections. Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it.
Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged.
The context of his statement is that the states should obey the orders of this "reasonable majority". The problem that existed at the time was that each state was setting its own trade policy, and that diminished the effectiveness of any trade policy. He wanted there to be a national policy, that all the states would be bound to go along with. He was not saying that it should require a unanimous vote of the states in order to adopt such a policy.
" --- How is this harmony to be obtained? only by an acquiescence of all the States in the opinion of a reasonable majority. -- -- or lastly let no regulation of trade adopted by Congress be in force untill it shall have been ratified by a certain proportion of the States. -- "
The context of his statement is that the states should obey the orders of this "reasonable majority".
Read further.. Its obvious he wants States to have a say in commerce 'regulation'. - And doesn't believe that the commerce clause allows Congress to issue prohibitory 'Acts'.
The problem that existed at the time was that each state was setting its own trade policy, and that diminished the effectiveness of any trade policy. He wanted there to be a national policy, that all the states would be bound to go along with. He was not saying that it should require a unanimous vote of the states in order to adopt such a policy.
Amendments require a three fourths majority.
Why is it you want to believe a majority can issue prohibitions on objects using the guise of the commerce clause?
I haven't said otherwise. He just isn't saying that consent needs to be unanimous among the states.
And doesn't believe that the commerce clause allows Congress to issue prohibitory 'Acts'.
Where does he say this?
Amendments require a three fourths majority.
Actually under the Articles of Confederation (which was in effect at the time of the letter) unanimity was required to make an amendment, but once the amendment would have been approved, it would not have required unanimity to pass a regulation of commerce.
" --- How is this harmony to be obtained? only by an acquiescence of all the States in the opinion of a reasonable majority. -- -- or lastly let no regulation of trade adopted by Congress be in force untill it shall have been ratified by a certain proportion of the States. -- "
The context of his statement is that the states should obey the orders of this "reasonable majority".
Read further.. Its obvious he wants States to have a say in commerce 'regulation'. - And doesn't believe that [a] commerce clause [should] allow Congress to issue prohibitory 'Acts'.
Where does he say this?
It's the thrust of his general argument. You don't agree with that argument, so you're nitpicking the issue, as usual.
The problem that existed at the time was that each state was setting its own trade policy, and that diminished the effectiveness of any trade policy. He wanted there to be a national policy, that all the states would be bound to go along with. He was not saying that it should require a unanimous vote of the states in order to adopt such a policy.
Amendments require a three fourths majority.
Actually under the Articles of Confederation (which was in effect at the time of the letter) unanimity was required to make an amendment, but once the amendment would have been approved, it would not have required unanimity to pass a regulation of commerce.
While interesting, your comment is in effect just more nitpicking in order to avoid the real issue:
Why is it you want to believe a majority can issue prohibitions on objects using the guise of the commerce clause?
Not even close. The thrust of his argument was the need for more power, not less.
The thrust of his argument was the need for more power, not less.
Your own post at #3 contradicts you:
--- we have this excerpt from a 1785 letter from James Madison to James Monroe:
Much indeed is it to be wished, as I conceive, that no regulations of trade, that is to say, no restriction or imposts whatever, were necessary. A perfect freedom is the System which would be my choice. But before such a system will be eligible perhaps for the U. S. they must be out of debt; before it will be attainable, all other nations must concur in it.
3 posted on 06/09/2005 10:07:25 AM PDT by inquest
So Congress doesn't have the power to prohibit commerce with foreign nations?
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