Commerce Power: “To Regulate,” not “Prohibit”

Today it is taken for granted that Congress’s power “to regulate . . . Commerce among the several States” includes the power to shut interstate markets down. That is why, for example, Congress is understood to have the power to ban the possession and use of marijuana, even though twenty states have expressed contrary preferences, either for the medicinal or recreational use of the drug. This Article argues that as a matter of constitutional history and theory both, this familiar assumption about congressional power is wrong.

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The Blueprint: James Madison’s Advice

We call the process nullification, and James Madison gave us the blueprint for stopping federal overreach before the Constitution was even ratified. Madison acknowledged anti-federalist fears that the new general government would try to exercise undelegated powers. And he assured them that the power of the states could keep the tendency in check in Federalist 46.

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Must the Federal Government Honor an “Equal Protection” Rule?

At first glance at the Constitution’s text, it would appear not. There is no general Equal Protection Clause in the Constitution applying to the federalgovernment—although there are a lot of clauses requiring equal treatment in specific situations. The Equal Protection Clause in the Fourteenth Amendment is general in nature, but it applies explicitly only to stategovernments.

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