Libertarian ping.To be added or removed from my ping list freepmail me or post a message here
Posted on 06/09/2005 9:58:33 AM PDT by P_A_I
The power to regulate does not generally include the power to prohibit.
Samuel Johnson defines "to regulate" as "To adjust by rule or method. . . . To direct." In other words, the term "to regulate" means "to make regular."
The power to regulate is, in essence, the power to say, "if you want to do something, here is how you must do it." For example, the making of contracts and wills are "regulated" by the law of contracts and estates. To make an enforceable agreement for a sale of goods over five hundred dollars requires that the agreement be in writing. To make a will requires a specified number of witnesses to one's signature. These requirements regulate--or "make regular"--the making of contracts and wills by subjecting them to a rule or method.
The power to regulate the making of contracts or wills is not the power to prohibit such activity, even though contracts or wills that do not conform to the regulation are necessarily unenforceable. A pure regulation of commerce, then, is a set of rules that tells people, "If you want to trade or exchange with others, here is how you must go about it."
In contrast, Johnson defines "to prohibit" as "1. To forbid; to interdict by authority. . . . 2. To debar; to hinder."
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.
And in Johnson's dictionary, neither "to regulate" nor "to prohibit" is defined in terms of the other; each seems quite distinct. Indeed, both terms appear in the Constitution and the context in which they are used suggests that their meanings sharply differ. Apart from the Commerce Clause, the terms "regulate" or "regulation" appear seven other times in the body of the Constitution and three times in the amendments proposed by Congress to the states, though only once in the Bill of Rights as ratified. The term "prohibit" is used once in the body of the Constitution and twice in the Bill of Rights. Article I, Section 4 gives Congress the power to "alter such Regulations" on the time, place, and manner of elections prescribed by state legislatures. Clearly, the power to regulate or facilitate elections is not the power to prohibit them. Article I, Section 8 gives Congress the power "to . . . regulate the Value" of money, not to prohibit the use of money or to "regulate" its value to zero.
In two places the Constitution makes an explicit distinction between prohibition and regulation. Article III, Section 2 gives the Supreme Court appellate jurisdiction, both as to law and fact, "with such Exceptions, and under such Regulations as the Congress shall make." By distinguishing "exceptions" from "regulations," the Constitution distinguished Congress's power to regulate or subject to rule the Court's appellate jurisdiction and its power to prohibit the Court from exercising its jurisdiction by making "exceptions" thereto.
If the power to make regulations included the power to prohibit that which is regulated, there would have been no need to give explicit power to Congress to make "exceptions" to appellate jurisdiction. That the Constitution does not adopt the broader meaning of regulation as "to govern" is also reflected in Article I, Section 8, which gives Congress the power "to make Rules for the Government and Regulation of the land and naval Forces."Here, the term "government" is coupled with "regulation" in a manner that makes clear that Congress has complete power to command or govern the army and navy, not merely the power to regulate them.
Less clear, but still consistent with the distinction between "To regulate" and "to govern," is Congress's power in Article IV, Section 3 "to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." Congress clearly has the power to govern the territories, and the term "rules and regulations" suggests strongly that its powers are broader than merely regulatory, though it includes the power to make "regulations" as well as other needful "rules."
That the Constitution uses the term "to regulate" in this sense is made plain by the Second Amendment, the first portion of which reads, "A well-regulated Militia, being necessary to the security of a free State."
A "well-regulated" militia is not a prohibited militia but one that is well drilled. Even those who read the Second Amendment as a "collective" rather than an individual right on the basis of this preface concede--indeed their theory requires them to insist--that the power to regulate the militia that the Constitution elsewhere confers upon Congress does not include the power to forbid or prohibit the militia. By their interpretation, the sole purpose of the Second Amendment was to protect the continued existence of the state militias.
By the same token, the power of Congress to "well-regulate" commerce among the states does not include the power to forbid or prohibit commerce. James Madison described a direct parallel between the regulation of the militia and the regulation of commerce when he asked: How can the trade between the different States be duly regulated without some knowledge of their relative situations in these and other points? . . . How can uniform regulations for the militia be duly provided without a similar knowledge of some internal circumstances by which the States are distinguished from each other? These are the principal objects of federal legislation and suggest most forcibly the extensive information which the representatives ought to acquire.
How do the debates in the state ratification debates bear out this distinction between the power "to regulate" and the power "to prohibit"?
The term "regulate" appears fifty-five times in all the records we have of the deliberations in the states. In every case where the context makes the meaning clear, the term connotes "subject to a rule" or "make regular" in the sense that "if you want to do something, here is how you should do it." As with the word "commerce," the term "regulate" is used with stunning uniformity--so much so that it would be tedious to reproduce the quotes here. And it is unnecessary because the term appears overwhelmingly in the context of regulatory powers that, as we observed in the intratextual discussion above, could not plausibly have included the power to prohibit such activities. These are references to the powers to regulate elections, jury trials, courts, militias, taxes, treaties, and the deliberations of the Senate In the rest, the term "regulate" is used in its ordinary sense, in some context other than the Constitution of the new government.
There is, however, one now-obsolete passage of the Constitution that argues for a broader original meaning of the term "To regulate." Article I, Section 9, stipulates that the "Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year" 1808.
Weasel words.
So Congress doesn't have the power to prohibit commerce with foreign nations?
Odd ideas you have bobby. -- Sure, Congress has the power to declare a commercial war, but not one against its own citizens rights.
Uh-huh.
Hooray for Randy Barnett! Gold veins in old mines re-tapped!
Read on. He then goes on to say why his "wish" wouldn't fit the country's needs.
That's not the thrust of his general argument, however.
You don't agree with that argument, so you're nitpicking the issue, as usual, 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?
Consequently, any "regulation" of commerce implies some sort of restriction or prohibition. We "regulate" alcohol to prohibit its use by those under 21, for example.
So the power to regulate commerce with foreign nations gives Congress the [wartime] power to prohibit -- but the power to regulate commerce among the several states does not give Congress the power to prohibit.
Uh-huh.
The 'bold' change is mine..
Your inability to understand Constitutional principles is well established paulsen.. --- Thanks for displaying it yet again.
--- any "regulation" of commerce implies some sort of restriction or prohibition. We "regulate" alcohol to prohibit its use by those under 21, for example.
Barnett's essay exhaustively defines the distinctions between regulations & prohibitions, paulsen.
Why don't you write us a blistering critique?
You did the essay on driver and auto licenses, right?
Libertarian ping.To be added or removed from my ping list freepmail me or post a message here
The 'bold' change is yours ... your mistake.
Look up Jefferson's 1807 Embargo against England and France. We weren't at war with them then.
And Jefferson's Secretary of State at the time was the man who wrote the Constitution. You think he would have said somehing about that, huh?
It's exactly his argument.
We aren't at war with Cuba either. Yet we have an arguably legal embargo.
-- As usual, like inquest, you want to nitpick over details while you ignore the Constitutional issues.
Why is it you want to believe a majority can issue prohibitions on objects using the guise of the commerce clause?
You wouldn't be the type to hold yourself to a lower standard than everyone else you deal with, would you? My post was no more "childish" than the unsupported statement of yours that I was responding to.
If you have anything further to say on the matter (like backing your statement up), then feel free to let me know.
And I stated my reason for pinging both you & paulsen to the same post.
I couldn't care less what your "reason" was. Don't ping me to replies to other people. It's not that difficult a concept.
Look, if you can't stand the heat of posting, - and replies, - get out of the kitchen. Your 'no ping' demand is childish.
Perhaps you and some other constitution experts might find this interesting. A theory of state vs federal powers and overall government power (articles of Confederation vs. Constitution etc..). Comparisons are also made to the present day EU constitution and a brief theory on the Bill of Rights.
http://www.neoperspectives.com/europeanconstitution.htm
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