Wednesday, August 5, 2009

All the legislative powers and then some

This video has been making the rounds on the Internet. Let me say first that I'm delighted to have a young soldier so interested in the Constitution. I'm not going to jump into the topic he's using constitutional analysis to discuss, namely universal health care, but I did want to point out that there are two problems with the picture of limited government powers that he paints.

The first objection is easy. Declares the soldier: "All the powers of the legislative government are confined in Article I, Section 8." That was true in 1789, but subsequent amendments have given Congress far more authority. Eight amendments carry the clause "The Congress shall have power to enforce this article by appropriate legislation" after spelling out new roles for the federal government. Most notable in this regard is the Fourteenth Amendment, which gives Congress power to pass laws insuring that the states provide due process and equal protection.

But there is a more fundamental problem with taking a hard-nosed position that the feds have those powers and only those enumerated in the Constitution. It's this: suppose you went with the young soldier to a baseball game this Labor Day, a federal holiday. No doubt prior to the game he would stand at attention when the American flag was presented and the National Anthem was played; good for him.

And you know what? Nowhere in the Constitution does it say that Congress or anybody else in the federal government has the power to designate an American flag, or to name a national anthem, or even to make a "labor day" holiday or any other kind of holiday.

The late Professor David Currie, considering the action of Congress in 1794 regarding the flag, wrote this:

'No one questioned Congress's authority to enact it [a flag statute]. The Constitution says nothing about flags. Congress must have understood the power to prescribe one to be inherent in nationhood: Every country needs a flag and the states were in no position to provide it. Tradition supports this interpretation... for the original flag of thirteen stats and stripes was adopted in 1777 by the Continental Congress, which had no express authority in the premises either." -- The Constitution in Congress: The Federalist Period 1789-1801, 1997, p. 204.

One could say much the same about national anthems and holidays as "inherent of nationhood." There is sound basis for an argument that certain powers and responsibilities are thrust on a nation whether it provides for them in a written constitution or not, and these may be acted on at any time but particularly in a time of crisis (see generally Chapter 2 of White, The Constitution and the New Deal, 2000).

No, I'm not saying the health care issue is a crisis. I don't believe we have a health care crisis; I think we have health care problems. But I think we've had those problems ever since George Washington muttered that a good set of wooden teeth was too expensive.

The larger issue is where a national health care plan fits in this scheme of powers government has not because they are enumerated but because, well, it's just something every country does. If Congress could enact a flag law in 1794 even if the Constitution confers them no such power, but the prevailing attitude is "Well, they can do that because every other nation does," it's a bit challenging to explain why in 2009 Congress can't pass a health care law when a whole lot of other countries have done the same.

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