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 Constitution: Birthed In Self-Determination

Self-determination means the right of the people to decide upon its own political status or form of government without outside influence. Consent of the governed is a phrase based upon the principle of self-determination. Any political society – government—that prohibits self-determination explicitly rejects popular sovereignty, whether the form and style of government is a republic or a democracy is, therefore, completely irrelevant and inconsequential.

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