While the rest of you were drinking in the salacious details of the Eliot Spitzer case, eyes irresistibly drawn to such sordid nuggets as the governor's taste, as described in wiretapped conversations, for "things that, like, you might not think were safe;" hearts racing at the New York Times' delicate, Edith Wharton-like description of the tryst ("Kristen, having already passed through the lobby, with its wing chairs and its gilded half-clad cherubs, arrived in a small room in a quiet corner of the 'Club Floor' . . . A king-size bed commanded the floor. Two photos — of the Capitol and the Washington Monument — hung beside a wood-framed mirror . . . An assignation of more than an hour ensued"); minds perhaps wandering to the question of what $4,300 a night buys you nowadays . . . where was I? Ah yes, while you lot were wallowing in the muck, I, your servant, was seized by a more plangent narrative point: they're going to nail him under the Mann Act.

The act, famously used to prosecute such notables as Jack Johnson, Chuck Berry, Charlie Chaplin and Charles Manson, is one of those oddities of American constitutional law, inasmuch as it outlaws, not prostitution, but interstate prostitution: or in the language of the act, the transportation of a female across states lines "for immoral purposes." As it happens, that is precisely what the governor is alleged to have arranged: alone in Washington on the eve of St. Valentine's Day — he was to testify the next day at a hearing on bond insurance — and finding the local fare, apparently, infra dig, he is alleged to have contracted with the now notorious Emperors Club ("beauty, elegance, erudition, and educational standing/career accomplishments are preliminary decisive factors in hiring") to have a girl delivered from New York. That's what made it a federal case.

Such are the uses of the interstate commerce power. Congress being anxious, in the censorious climate of 1910, to crack down on prostitution, but Congress lacking the powers, under the constitution, to do any such thing — prostitution being a state concern — Congress, at the urging of Rep. James Robert Mann, hit upon the scheme of invoking the power assigned to it under Article I of the constitution to "regulate commerce with foreign nations, and among the several states, and with the Indian tribes." From that one clause has sprung, over the years, a whole range of federal regulatory powers, from inland waters to meat-packing to much of the New Deal, as the meaning of "commerce" was ground through the mills of judicial interpretation: did it mean mere trade, or the whole range of human interaction? As chief justice John Marshall observed in an early commerce power case, "commerce, undoubtedly, is traffic, but it is something more — it is intercourse."

Which, er, brings us back to the Mann Act — formally described as "an act to further regulate interstate commerce and foreign commerce by prohibiting the transportation therein for immoral purposes of women and girls." But what were immoral purposes? The act lists "prostitution and debauchery," but also "any other immoral purpose." So it was that the Mann Act soon came to be used, not just against the white-slave trade that was its ostensible target, but against all manner of activities deemed immoral, from premarital sex to adultery to polygamy — just so long as the person or persons involved had crossed a state line. (Of course, this raised interpretive questions of its own. In United States vs. Jamerson (1944), the district court of Iowa ruled that, where a car full of girls approaches a state line, the mere expedient of having the girls get out and walk across the line, then get back in the car for the rest of the trip, was not sufficient to make it count as two separate journeys.)

The moral of this immoral story: the power to regulate internal trade, what we in Canada would call the economic union, is potentially a very big stick indeed. The interstate commerce power was a major factor, most constitutional scholars agree, in the rise of the American federal government to its present position of dominance relative to the states, even under a constitution that reserved to the states all powers not expressly enumerated as federal. The Interstate Commerce Commission, in particular, arrogated such powers to itself, in the century or so in which it was active (it was abolished in 1995) as the power to regulate the placing of commercial signs near schools.

Even a rigid centralist like me would concede that goes too far. But in a highly devolved federation such as ours, where the federal government seems to give more ground to the provinces with each passing year, we could do with such problems. So it is with anticipation, and not alarm, that I note the parallels between the interstate commerce power and our own "trade and commerce" power, which the Harper government, in the Throne Speech, promised to bring out of mothballs — in the name, it said, of asserting "the federal government's rightful leadership in strengthening Canada's economic union."

The passage was little noted at the time, and its significance has been debated since. But if the Harperites are serious, it holds the potential to substantially alter the federal-provincial balance of powers. As Eliot Spitzer could attest.

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