by Rob Natelson
From time to time I punch holes in “progressive” myths about the Constitution and the American Founding. But conservatives and libertarians have their own myths as well.
One is that congressional authority under the Commerce Clause (I-8-3) to “regulate Commerce among the several States” permits Congress only to facilitate trade among the States—i.e., that “to regulate” means only “to make regular.” The claim is that the Commerce Clause does not empower Congress to burden or obstruct commerce—and therefore Congress has no power to ban trade in products such as obscenity, marijuana, or goods made with child labor.
This argument, like so many other constitutional claims, seems to have arisen among partisans in the 19th century, but it remains popular among some libertarians today. Its promoters observe that a major reason for the Interstate Commerce Clause was to enable Congress to smooth out barriers to trade that some states had erected against other states.
Unfortunately for us free traders, the argument is false. Congress’s power to “regulate Commerce . . . among the several States” is far wider than merely authority to make trade regular. Congress also may obstruct trade, or even ban it. (more…)
