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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

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" --- 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. -- "

How many times must all levels of our governments be told that they do not have the power to prohibit?

1 posted on 06/09/2005 9:58:33 AM PDT by P_A_I
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To: P_A_I

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.


2 posted on 06/09/2005 10:03:48 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
For another perspective on the word, 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 (FTAA delenda est)
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To: agitator
Barnett:

" --- 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.

4 posted on 06/09/2005 10:21:31 AM PDT by P_A_I
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To: agitator
"All forms of activity that require a license are prohibited."

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.

5 posted on 06/09/2005 10:22:17 AM PDT by tahiti
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To: P_A_I
Randy Barnett is my hero.

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.

6 posted on 06/09/2005 10:25:00 AM PDT by tahiti
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To: inquest
Read further.. Sure, he admits we must have overall fed control over commerce but only with State acquiescence:

" --- How is this harmony to be obtained? only by an acquiescence of all the States in the opinion of a reasonable majority.
If Congress as they are now constituted, can not be trusted with the power of digesting and enforcing this opinion, let them be otherwise constituted: let their numbers be increased, let them be chosen oftener, and let their period of service be short[e]ned; or if any better medium than Congress can be proposed, by which the wills of the States may be concentered, let it be substituted;
-- 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.

But let us not sacrifice the end to the means: let us not rush on certain ruin in order to avoid a possible danger. I conceive it to be of great importance that the defects of the federal system should be amended, not only because such amendments will make it better answer the purpose for which it was instituted, but because I apprehend danger to its very existence from a continuance of defects which expose a part if not the whole of the empire to severe distress. -- "

So here we have it.. Severe State distress, no harmony, -- because the feds insist that they have the power to prohibit, rather than to reasonably regulate.

Why is that? What drives otherwise reasonable people to prohibitionism?
7 posted on 06/09/2005 10:42:48 AM PDT by P_A_I
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To: tahiti
I assume you have read his book "Restoring the Lost Constitution, A Presumption of Liberty."

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.

8 posted on 06/09/2005 10:46:21 AM PDT by Texas Federalist (No matter what my work/play ratio is, I am never a dull boy.)
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To: tahiti
tahiti wrote:

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.

9 posted on 06/09/2005 10:54:57 AM PDT by P_A_I
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To: P_A_I
8 replies vs 155 views...

The magical 20 to 1 ratio is rapidly being approached. Apparently, the concept of prohibition as a social disease is not a big hit with those who exhibit its symptoms.
10 posted on 06/09/2005 12:02:38 PM PDT by P_A_I
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To: P_A_I; Ken H

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


11 posted on 06/09/2005 12:45:20 PM PDT by Drammach (Freedom; not just a job, it's an adventure..)
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To: Drammach

Thanks for the comment.


12 posted on 06/09/2005 2:08:00 PM PDT by P_A_I
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To: Drammach
Madison wrote two letters in which he explained the intent of the Commerce Clause. He also explained the difference between the power to regulate commerce with foreign nations, and the power to regulate commerce among the the several States.

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.

13 posted on 06/09/2005 2:11:27 PM PDT by Ken H
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To: P_A_I
"...only by an acquiescence of all the States in the opinion of a reasonable majority.

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.

14 posted on 06/09/2005 2:30:30 PM PDT by inquest (FTAA delenda est)
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To: inquest
Read further.. Sure, he admits we must have overall fed control over commerce, but only with State acquiescence:

" --- 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?

15 posted on 06/09/2005 2:56:47 PM PDT by P_A_I
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To: P_A_I
Its obvious he wants States to have a say in commerce 'regulation'.

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.

16 posted on 06/09/2005 4:51:25 PM PDT by inquest (FTAA delenda est)
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To: inquest
Read further.. Sure, he admits we must have overall fed control over commerce, but only with State acquiescence:

" --- 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?

17 posted on 06/09/2005 5:26:35 PM PDT by P_A_I
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To: P_A_I
It's the thrust of his general argument.

Not even close. The thrust of his argument was the need for more power, not less.

18 posted on 06/09/2005 5:30:08 PM PDT by inquest (FTAA delenda est)
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To: inquest
inquest wrote:

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

19 posted on 06/09/2005 6:14:38 PM PDT by P_A_I
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To: P_A_I

So Congress doesn't have the power to prohibit commerce with foreign nations?


20 posted on 06/09/2005 7:03:42 PM PDT by robertpaulsen
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