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The power to regulate v. the power to prohibit
randybarnett.com ^ | 6/9/05 | Randy Barnett

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.


TOPICS: Constitution/Conservatism
KEYWORDS: 2a; billofrights; conspiracy; constitution; constitutionlist; donutwatch; govwatch; libertarians; wodlist
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To: P_A_I
"We aren't at war with Cuba either. Yet we have an arguably legal embargo."

We have a legal embargo. We're not at war. You are in error to say that we must be at war in order to ban commerce with foreign nations.

41 posted on 06/10/2005 6:03:52 AM PDT by robertpaulsen
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To: robertpaulsen
We aren't at war with Cuba either. Yet we have an arguably legal embargo.

-- As usual, 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?

We have a(n) [arguably] legal embargo. We're not at war.

Exactly what I wrote just above.

You are in error to say that we must be at war in order to ban commerce with foreign nations.

You really are amusing paulsen, as you dance around nitpicking these issues. -- Admit it, you love all prohibitions. Even those on guns.

42 posted on 06/10/2005 6:55:08 AM PDT by P_A_I
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To: P_A_I
"nitpicking these issues"

Nitpicking? It's the subject of the article, doofus.

43 posted on 06/10/2005 7:14:19 AM PDT by robertpaulsen
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To: robertpaulsen
robertpaulsen nitpicks:

It's [banning commerce with foreign nations] the subject of the article, doofus

The power to regulate v. the power to prohibit is the subject, not your doofy diversions.

44 posted on 06/10/2005 7:26:07 AM PDT by P_A_I
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To: P_A_I; Jim Robinson; Admin Moderator
Look, if you can't stand the heat of posting, - and replies, - get out of the kitchen.

Odd advice, coming from someone who has no business being in the "kitchen" in the first place.

Mr. Robinson, Mr. Moderator, I'd like to request that you look over the posting history of this "P_A_I" clown. You'll find that his posting style has a very familiar ring to it. Yup, he's back, and he's back to the same juvenile antics that led to his banning before, and it's really starting to get boring again.

45 posted on 06/10/2005 7:36:23 AM PDT by inquest (FTAA delenda est)
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To: bvw

yep

http://taor.agitator.dynip.com/on_law.htm


46 posted on 06/10/2005 7:36:38 AM PDT by agitator (...And that no man might buy or sell, save he that had the mark)
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To: inquest
Good grief, now you've really proved how childish you've become.

Whatta man.
47 posted on 06/10/2005 7:47:01 AM PDT by P_A_I
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To: tahiti

Read this if you're interested in the subject of licensing. I'm not holding my breath, 1 out of 1000 has the attention span required.

http://taor.agitator.dynip.com/on_law.htm

I'm too busy to argue with self-appointed experts talking through their hats.


48 posted on 06/10/2005 7:50:29 AM PDT by agitator (...And that no man might buy or sell, save he that had the mark)
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To: P_A_I

See this link, you might find it interesting.

http://taor.agitator.dynip.com/on_law.htm

Then again, maybe not :)


49 posted on 06/10/2005 7:51:50 AM PDT by agitator (...And that no man might buy or sell, save he that had the mark)
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To: agitator

I read it all years ago agitator. Well reasoned good stuff.
We agree on Constitutional principles, fer sure.

Thanks & regards. - See you next time.


50 posted on 06/10/2005 8:00:10 AM PDT by P_A_I
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To: inquest; Jim Robinson; Admin Moderator
Posted by inquest to P_A_I; Jim Robinson; Admin Moderator

On News/Activism ^ 06/10/2005 7:36:23 AM PDT · 45 of 50 ^

Look, if you can't stand the heat of posting, - and replies, - get out of the kitchen.
Odd advice, coming from someone who has no business being in the "kitchen" in the first place.

Mr. Robinson, Mr. Moderator, I'd like to request that you look over the posting history of this "P_A_I" clown.
You'll find that his posting style has a very familiar ring to it.
Yup, he's back, and he's back to the same juvenile antics that led to his banning before, and it's really starting to get boring again


______________________________________


Yup, we're back to the same old juvenile antics.. When you can't prevail in your argument, disrupt the tread, provoke a meaningless flame war, and see if you can get your opponent banned.

This is indeed getting boring. To bad that FR can't break the cycle by instituting some sort of 'Bozo Button'.
-- Just imagine, if inquest could bozo me, he would no longer be forced to reply to my threads or the ideas expressed in them. -- If he then insisted on doing so anyway, -- Mods could just save him from himself, and bozo me from his view, & vice versa.

-- I'd bet that within days of enforcing such a plan, complaints to Moderators would virtually cease, as even bozos would realize that it is no fun arguing the issues with yourself.
51 posted on 06/10/2005 8:32:03 AM PDT by P_A_I
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To: P_A_I
When you can't prevail in your argument...

There was scarcely anything for me to prevail against. You claimed Madison was saying the exact opposite of what he was saying. I'm not going to waste my time quoting the entire letter to you, when all anyone has to do is read it over at the link I provided. Trying to walk you through it would be absolutely no more productive than trying to explain that 1+1=2 to someone who refuses to believe it.

To bad that FR can't break the cycle by instituting some sort of 'Bozo Button'.

That is actually an excellent suggestion; I'm surprised you had it in you. And if you were around long enough to see it implemented, you would indeed find out how pointless it is to wind up talking to yourself.

52 posted on 06/10/2005 10:43:34 AM PDT by inquest (FTAA delenda est)
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To: P_A_I
Article I, Section 8, which gives Congress the power "to make Rules for the Government and Regulation of the land and naval Forces

So, to a strict Constitutionalist, who believes that the government only has powers specifically granted in the Constitution, it is not constitutional to have an air force?

53 posted on 06/10/2005 6:02:29 PM PDT by Bernard (Which gospel does your truth come from?)
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To: Bernard
You might want to look at Article IV, Section 4.
54 posted on 06/10/2005 8:12:13 PM PDT by inquest (FTAA delenda est)
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Comment #55 Removed by Moderator

To: P_A_I

bump


56 posted on 04/22/2006 8:13:19 AM PDT by tpaine
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yearly bump.


57 posted on 04/04/2007 4:54:45 PM PDT by tpaine (" My most important function on the Supreme Court is to tell the majority to take a walk." -Scalia)
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To: Bernard
So, to a strict Constitutionalist, who believes that the government only has powers specifically granted in the Constitution, it is not constitutional to have an air force?

No, it is not; we could have an Army Air Corp... but there's nothing authorizing an Air Force either.

58 posted on 07/01/2012 9:59:08 AM PDT by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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