tag:blogger.com,1999:blog-1763883859696167228.post7303931759281128543..comments2023-11-03T03:37:02.548-05:00Comments on WEBSTER'S BLOGSPOT: The (real) Spirit of '87Terry Morrishttp://www.blogger.com/profile/00166609562028309038noreply@blogger.comBlogger1125tag:blogger.com,1999:blog-1763883859696167228.post-36734611462113227822009-09-23T02:49:37.175-05:002009-09-23T02:49:37.175-05:00To regulate commerce by laws, one must exercise po...To regulate commerce by laws, one must exercise power to govern it, and that power is necessarily one of restraint rather than promotion. And insofar as such regulation is one of the Constitutional powers of Congress, and as the powers which would be necessary for the States to undertake this regulation themselves are specifically prohibited to them in the tenth Section of the same Article, I think that in matters of regulating interstate commerce the strict Constitutionalist would have to agree that the States have no power to contest the Congress's regulation of interstate Commerce.<br /><br />But that doesn't mean that such power has no limits, nor that there is no agency which can lawfully contest it. First, all powers of Congress are limited in their use by the necessity that they comply with the equal protection clause, which is also apparent from the clauses in Article IV. First, Congress may by <i>general</i> Laws prescribe the effects and limits of State laws which may affect legal questions arising in another state. Which is to say that Congress cannot single out given states for preferential or unequal treatment, the law must be written to apply to the type of State act it regulates, not on the basis of which state enacted it. It is also stipulated that the Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.<br /><br />This prohibition against preferential treatment of one state or punishment of another is perhaps the most potent limitation on all the powers of Congress, not just the Commerce clause. It is also completely absent from all arguments (and exercises) of Federal supremacy over the individual States, which are based on the inherent assumption that the Federal government has any power at all to do anything to a particular state.<br /><br />More pointed, while the Congress does have power to regulate Commerce between States, that does not grant it any power whatsoever over transactions between individuals where neither is acting as an agent of any State. Only where a good is produced or transported at the direct behest or under the explicit authority of a state government can the Commerce clause properly apply at all.<br /><br />Which is to say, I must argue that the Congress's power to regulate Commerce between the States is indeed totally superior to any power which the States have over such commerce, but not to the power which individual citizens may exercise over their own commercial transactions.<br /><br />But as long as we're being such strict Constitutionalists, exactly where does Congress get off having an Army?Anonymousnoreply@blogger.com