The Interstate Commerce Clause has to go if we are to have any hope of containing the situation. To understand why, simply perform an easy thought experiment: come up with something that isn’t “interstate commerce” under existing interpretations. You won’t, because you can’t — and if that’s the case, the entire Constitution resolves to five words: Congress shall have the power. That’s not what the Founders intended, and more importantly it’s not what works.

Why is it there in the first place?

The Founders lived in a world where most Government revenues were obtained by taxing trade. Tariffs, duties, imposts — there are many words for it, but the idea was that the movement of goods and services was taxed to support the habits of States, Governments, and Princes. It’s doubtful that even Jefferson would have easily comprehended the modern notion, established by economic theory and confirmed by multiple experiment, that free trade benefits the free trader even if its trade partner doesn’t reciprocate. (To be fair, a lot of otherwise intelligent people nowadays have a hard time wrapping their minds around the concept.)

But one of the crippling disabilities of the Articles of Confederation was that the States were free to “regulate” and tax trade with other States. The result was trade wars that were both economically crippling and tending to damage the necessary sense of unity for a Nation. The Framers of the Constitution wanted to avoid that, so they assigned the responsibility for regulating commerce among the States to the Congress, by implication removing that power from the States.

My own prejudice in the matter is that the Framers expected Congress to establish tariffs and imposts on trade among the States, with the revenues going to the national Treasury. The clause hasn’t been used for that, and what use it has had along the lines the Framers intended has been uniformly wrongheaded and damaging. The Coastwise Tariffs of the early Nineteenth Century were cynically intended to keep the South agrarian and poor while building industry in the Northern States, and were one of the major contributors to the resentment that led to the Civil War; and the requirement that seaborne trade among the States must take place in US-built ships has for all practical purposes eliminated coastwise trade within the United States.

Despite those hiccups, trade among the States has been almost completely unhindered, which makes the US as a whole the poster child for free trade. If New Mexico and New York can have free trade with both benefitting, despite having little in common but broad outlines of the language, there’s no reason the US as a whole can’t have free trade with, say, Korea, and have both profit — and the same is true of Namibia and New Zealand, or any other pair of nations you care to name. That whole concept would have astounded the Framers almost as badly as it offends today’s labor Unions and other protectionists.

Meanwhile, and especially in the past century, the Interstate Commerce Clause has been interpreted to give Congress powers the Framers never intended, and in fact intended to specifically deny it. The Framers’ ideal wasn’t “freedom”, it was Liberty, and there is an unsubtle difference between the two concepts. Liberty is a lack of constraint; “freedom” is positive permission. If you have liberty it takes an act of volition to interpose a restraint, but permission is effectively withdrawn by simply not renewing it. The Framers were aware that some restraints on Liberty were necessary, but their stated intent was to keep the restraints to an absolute necessary minimum.

As I have already suggested, the way to fix it is to add an Amendment removing the power of the Congress to regulate interstate commerce while requiring free trade among the States. That preserves the good effects of the clause, and avoids the problem encountered under the Articles of Confederation, while whacking the Federal Government back to manageable size. There’s no doubt that the people with a thirst to run people’s lives will find other excuses — the power to specify weights and measures comes to mind — but it’ll take a while for the effects to build up.

Comments here and (especially) at the Protein Wisdom Pub have tended to call the proposal foolish (“kookyness”). Those judgements come from people who haven’t internalized Reagan’s Rule, otherwise the Iron Law of the State: A Government that can give you everything you want can take from you everything you have. Every faction in the United States, including yours (whatever it may be), has laws it approves of that are based on the interstate commerce clause. What they miss is that the laws they bitterly oppose are based on the same power, and polarity is irrelevant — if you can, for instance, ban abortion or recreational drugs based on interstate commerce, the other guys can put you in jail for not having health insurance on the same grounds; and if you want “civil rights” laws based on interstate commerce, the other guys get to defend marriage. It’s all the same power.

There’s no way both (all) sides can get what they want, and the only way to prevent the Other Guys from getting the vile evil horridness they want is to give up the ability to impose your views of Purity and Goodness. Yes, it’s throwing out the baby with the bath water. Trouble is, it’s a matter of opinion which is which.

(Cross-posted to PW Pub)