George F. Will: Congress' war on behavior hurts the Constitution

Published: Sunday, June 16 2013 12:00 a.m. MDT

There have been equally spurious uses of Congress' enumerated power to regulate interstate commerce. In 1903, the court upheld, as a valid exercise of that power, a law suppressing lotteries by banning the interstate transportation of lottery tickets. Dissenting, Chief Justice Melville Fuller argued that the power to regulate persons and property in order to promote "the public health" and "good order" belongs to the states.

Seven years later, the Commerce Clause was the rationale for the Mann Act banning the transportation of females for the purpose of "prostitution or debauchery, or for any other immoral purpose." Including, it turned out, noncommercial, consensual sex involving no unhappy victim.

Today, Congress exercises police powers never granted by the Constitution. Conservatives who favor federal "wars" on drugs, gambling and other behaviors should understand the damage they have done to the constitutional underpinnings of limited government.

George Will's email address is georgewill@washpost.com.

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