In a law review article titled “To Regulate, Not Prohibit: Limiting the Commerce Power,” New York University Law Professor Barry Friedman, and 2011 New York University Law graduate, Genevieve Lakier take on the daunting task of reasserting the historic and genealogical lineage of the Commerce Clause from its inception through the country’s 237 years of existence as a federal republic.
This thorough and thoughtful 67 page treatise is broken down into three distinct eras. In the first section, the authors cite numerous uses and misuses of commerce power, including a legal concept allowing the federal government to prohibit commerce of certain goods or fungible items.
The Commerce Clause is found at: Article 1, Section 8, Clause 3 of the Constitution, and declares: the congress shall have power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”
Lawyers and laity alike generally assume the Congress’s power “to regulate” commerce, includes the authority to prohibit it. Professor Friedman points out that historically, this is not how the Commerce Clause has always been understood and practiced.
“At the Founding, and roughly 115 years thereafter, the dominant view was that Congress did not possess the authority to ban goods merely because they crossed state lines.”