Do you start to see the problem?
What about masturbation? It’s a fairly private act, after all, and isn’t done across State lines except in extraordinary circumstances, unless you live in Texarkana or Bristol.
Masturbators often use unguents and lubricants to enhance the experience. Unguents and lubricants are items of commerce, and therefore (by current Court precedent) items of interstate commerce. Masturbation increases the demand for items of commerce, and therefore “materially affects” interstate commerce. The fact that not all masturbators use unguents and/or lubricants is irrelevant — the fact that some do affects commerce.
Furthermore, the whole point of masturbation is to reach sexual climax. Sexual climax is a state in which bodily functions including metabolism are accelerated, and accelerated metabolism increases output of carbon dioxide. It is already firmly established that carbon dioxide is an item of interstate commerce.
We thus have two lines of argument, either sufficient, that point to the conclusion that masturbation is interstate commerce under current law and Court precedent, and can therefore be regulated by the Congress. If that’s the case, it’s going to be a hard slog to come up with anything that isn’t interstate commerce that can be “regulated” should Congress wake up in a grumpy mood some morning. And if that’s true — if literally anything anybody can do counts as “interstate commerce” that can be regulated — then the Constitution is a dead letter, of interest only to historians other than some fiddlin’ details about who can hold office.
Of recent note are attempts by various States to exempt something — typically firearms — from regulation, by declaring that something produced entirely within the State is not, by definition, an item of interstate commerce. It’s pissing in the wind. The Court case that set off the current boom in regulation of interstate commerce involved wheat grown entirely within a State; the farmer claimed he could sell it to a buyer within the same State, and thus be exempt from Federal wheat price controls. No dice. After all, if the buyer bought the wheat from that farmer, he didn’t buy wheat from another farmer in a different State; that clearly affects interstate commerce, and the sale was subject to regulation. If a buyer purchases a firearm made entirely in Idaho, the market for firearms manufactured in Connecticut is reduced; that makes the transaction interstate commerce, and Federal firearms laws apply.
So under present Court precedent and legal doctrine, the Constitution consists of five words: Congress shall have the power. That’s it. That’s all there is. It is difficult to imagine anything further from the intent of the Framers.
(crossposted to the PW Pub)