Body Scanners, Health Insurance Mandates, and the Constitution
The Transportation Security Administration is planning to make greater use of full-body scanners, even as critics continue to raise concerns ranging from privacy to porn, or in the words of one Congressman:
“Do we really need to take nude pictures of Grandma or my 8-year-old daughter in order to be able to secure an airplane?”
I’m still waiting for the argument that full-body scanners are not authorized by the Constitution; that the President’s power as Commander in Chief and Congress’ power to provide for the common defense do not assume the authority to deploy and use full-body scanners.
That’s ridiculous, you say. No one would make an argument like that.
I’m not so sure.
Frankly, I don’t see how the enumerated-powers argument against body scanners would be any more far-fetched than the enumerated-powers argument against the Democrats’ evolving vision for health care reform. The latter argument goes something like this: Congress’ powers to provide for the general welfare and regulate commerce do not assume the authority to reform health care, much less mandate that all citizens have health insurance.
You might respond that I’m hopelessly ignorant; that there is a big difference between these two arguments. And depending on your political orientation, you might attempt to explain that big difference this way …
Greater latitutude should be given to the President and Congress when defending our nation because our enemies are ruthless and nimble and constantly evolving. Besides, even if the health-insurance mandate could be justifed by the general-welfare and commerce clauses, it would violate the “takings” clause of the Fifth Amendment: “nor shall private property be taken for public use without just compensation”.
Or this way …
Greater latitude should be given to Congress when providing for the general welfare and regulating commerce because our founding fathers never anticipated contemporary advances in medical science and the sizable portion of GDP commanded by today’s health care industry. Besides, even if full-body scanners could be justified by the common defense clause, they would violate the letter and spirit of the Fourth Amendment, which prohibits “unreasonable searches and seizures” — of “persons” as well “houses” — and thus requires warrants based on probable cause, “particularly describing the place to be searched, and the persons or things to be seized.”
So, what exactly is my point? Honestly, it has very little to do with insurance mandates or body scanners, both of which, properly structured and implemented, seem to be perfectly appropriate if not necessary responses to the world as it is, not as it once was, nor as we might like it to be. Instead, with apologies for the long and winding road to get here, my point is this: Strict constructionism is for the birds.
The Constitution can be used to argue for and against a lot of things. And it should be. But eventually, we have to remember that it is a very old document and its authors were as incapable of imagining the world we live in today as we are incapable of imagining the world our descendents will live in 200-plus years from now.
Yes, our founding fathers gave us, in Article V, a mechanism for updating the Constitution. But considering how difficult they made this mechanism, I suspect they intended it to be used primarily for matters of principle and paradigm, not matters of such tactical and transient nature as health insurance and airline security. For those issues — the tactical issues — our founding fathers gave us not a rule book, but an opportunity to elect representatives who would presumably debate and address contemporary issues on contemporary terms, checked and balanced by colleagues and voters living in the same world at the same point in time.
18 Responses to “Body Scanners, Health Insurance Mandates, and the Constitution”
Interesting premise, Pete.
Question: where do you draw the line on those tactical issues. Before or after torture? Before or after suspending habeas corpus to hold citizens in Naval brigs, before or after eavesdropping of soldier's private conversations with loved ones in the name of national security, before or after clearing inner cities of crime by sending in the the National Guard to shoot gang members on site (as one TMV commenter suggested)?
The worst thing about the Constitution is that it limits the governments ability to act. The best thing about the Constitution is that it limits the government's ability to act. Pick your poison, I guess, but I'd prefer to keep the contitutional protections in place rather than engage in the dangerous political guessing game of which modern “tactical” choices are worthy and which are not.
“Strict constructionism is for the birds.”
You're incorrect, Pete. The arbitrary, whimsical, and political alternative (it is “the” alternative) is illegitimate. And as I have correctly stated before, it's no different than having your will stated to be “living, breathing,” and subject to creative interpretation such that your beneficiaries receive nothing and enemies of yours or strangers receive everything after you die, to use an educational example.
As to the body scanners, this is possibly a privacy concern, though I don't see it as one (it is not being excessive given the threat we now face), and overseas travel in particular (more than the debatable case of intra-US travel) is certainly an object of federal jurisdiction. Details (“tactical” stuff) such as body scanners, metal detectors, dogs? “Necessary and proper” — implied powers and adjunct functions.
* * *
“The worst thing about the Constitution is that it limits the governments ability to act.”
First, are you referring to the federal government, as distinguished from state and local governments?
Second, the essence of the Constitution and indeed what is obviously best about it is that it establishes constraints and limits on authority and power, especially that vested in and held by the federal government. (In fact, it is a special case of the best reason there are laws rather than arbitrary power and rule and use of force by some against others, of “government of laws, rather than of people.”)
That is,
“The best thing about the Constitution is that it limits the government's ability to act. “
Cool, do I get to ignore all laws that are old? You know because they're from “a very old document and its authors were as incapable of imagining the world we live in today”.
Tidbits — You raise some excellent questions. I'm certainly not suggesting a cavalier dismissal of the Constitution, only a recognition that it does not and perhaps cannot provide answers on every issue.
For instance, the Constitution prohibits cruel and unusual punishment of citizens, but it does not directly address the torture of enemy soldiers. It does, however, give the President the right to enter into international treaties with Congressional consent. I assume the latter power would include treaties that prohibit torture, although that's not precisely defined in the Constitution, and a strict construction of the treaties power could be “twisted” to argue that the founders only anticipated treaties on matters of collective defense, not on matters such as torture. Does that, in turn, mean we must first amend the Constitution to allow for multiple forms of treaties, or do we trust our system of checks-and-balances to approve non-specified treaties (such as those banning torture) consistent with contemporary values?
In addition, I recall that – beond international treaties – we have national laws prohibiting the torture of enemy soldiers. But the Constitution does not list the passing of such laws among the enumerated powers of Congress. Should we amend the Constitution to enumerate that power for Congress, or do we trust our system of checks-and-balances to advance these laws because they’re the right thing to do?
Another example, the Constitution provides room for exception on habeas corpus, “when in cases of Rebellion or Invasion the public Safety may require it.” Lincoln and GW Bush both exercised that exception. Did one of them go too far but not the other? How is that exception best defined and limited? By amending the Constitution itself, or by Congress passing a clarifying bill, even if the passing of such a law is not among Congress' enumerated powers?
In each case, I’d argue that we do not need the Constitution to be so specific. At the core of the Constitution is a system of checks-and-balances, and that system is the best collective arbiter of details, not some manic process of amending the text of the Constitution to account for everything not specified.
I agree on the need to be sensible, and believe a careful study of our history would show we have set aside strict construction in the national interest-then returned to it once the emergency ended.
I also think the tension between strict construction and “liberal” construction is not unlike the mechanism of a pendulum clock : it keeps us ticking.
Pete,
My questions were obviously extreme. To touch on my personal opinion, I do not believe there actually are strict constructionists, just liberal activists and conservative activists…each calling for strict construction when it suits them and taking a more open view of constitutional interpretation when it suits them. My prior comments, debating some who believe themselves to be strict constructionist, include identifying Antonin Scalia as the most activist Justice currently sitting on the Supreme Court.
We do indeed have a cultural idolatry when it comes to the “Founding Fathers'. They were wise, not omniscient. The Constitution is one of our checks and balances, not subserviant to other checks and balances, and it should be interpreted within the context of historical understanding. It was never intended to be inelastic, but rather to set parameters and values by which we judge our laws and our government's actions.
You and I are not far apart, though one could read your piece as a suggestion that the dusty old document be relegated to its proper place in the Smithsonian. Thank you for clarifying that is not what you intended.
gc
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Sorry Pete, but I think you're attributing way too much faith in “checks and balances”, especially since we've sacrificed many of them in the past. To name a few (in no particular order):
Removing state governments' representation with the 17th amendment.
Allowing the president to attack other nations without a declaration of war.
Allowing the federal government to spend on any cause, with an open-ended interpretation of “General Welfare”, which immediately included specific welfare.
Allowing the federal government to control intrastate activities under the interstate trade clause.
Allowing congress to transfer the issuance of currency to a non-government entity, without a constitutional amendment.
Allowing congress to tax individuals, without any limits as to what it can call, or not call, income.
Defining corporate persons to be equivalent to natural persons, which in many ways has made them superior to natural persons in influencing congress.
Removing judicial oversight of executive offices for “national security” purposes in an endless war.
Tidbits nailed it perfectly, most people will hold high the constitution and hail its immutable powers over a megaphone — until it gets in their way. Then they shred it and seal it in a vault, and wonder why no one seems to care about it the next time they need it, which is why it's lost most of its power.
It is either a defining document that limits what the federal (and to a lesser extent, the state's) government can do, or it doesn't. Currently it doesn't, unless the supreme court dusts it off, which it happens only on occasion.
The technology argument also has very limited application, since the document isn't a technological treatise, but concerns people and the rule of law, neither of which have changed much over the last 200 years. Power still corrupts; no one person should ever be trusted absolutely; transparency is still important. Did I mention power corrupts?
I don't see how you can give congress the “freedom” to ignore their constitution limits when making laws, but deny its subjects (phrase used on purpose) that same “freedom” to ignore the limits that they place on us.
Very well said Prof.
I especially appreciated the reference to “corporate persons” being given rights equal to, and often superior to, natural persons, a point I have argued many times here, and one of the reasons I regard Scalia as the most activist of the SC Justices.
Aside: This may not reach you as a Reply, though I am trying. After attempts on three computers, Disqus seems not to want to honor the reply function today…if TS or any of TMV's erstwhile techs/editors are reading.
No problem, I rescan after I've been away for a while. What browser are you using on these computers?
Explorer? I think…not a computer person. Standard PC pre-loaded stuff. Problems just started today… no viruses…no issues before. Replying from Blackberry…maybe this will process better.
That worked. Sometimes the smaller, simpler stuff works better.
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Pete,
I'm not sure what to make of your argument. I don't think strict constructionist is at odds with your argument that there are some tactical issues which are left to the balance of powers. The constitution does not, and did not intend, to answer all questions about what laws should and should not be passed. It was intended to be the price of entry for any law being considered. Once a proposed law is determined to be constitutional (which may or may not be controversial), then it is up to the balance of powers to consider whether it should be implemented. So I think you are setting up a false choice: we can still respect the constitution strictly, even if it is dusty, while recognizing that not every policy debate centers around the constitution.
With regards to some of your specific examples:
Laws prohibiting torture: I don't see any conflict. A law prohibiting torture would be a law that restricts what the government can do. I don't know of anything in the constitution that would prevent the government from passing a law that defines something that the government will *not* do, nor would there be any need for such a provision to be added to the constitution. It's obviously implied that the government has the power *not* to do something if it chooses.
With regards to suspending habeas corpus, you are right that the constitution is vague on when it can be suspending, which leaves the power to decide that question to a large extent to the balance of powers. That doesn't seem to me to be evidence that the constitution is old and fails to consider our modern world. It seems to be evidence that even a strict interpretation of the constitution leaves room for debate over the particulars, which you are suggesting are mutually exclusive.
Finally, with regards to full-body scanners, you predict that some will try to argue that they are unconstitutional. I think you are probably right. You also predict that some will try to argue that full-body scanners are completely different than an individual mandate to buy health insurance. You are right also, because I would argue that. I'm not a constitutional scholar, but from what I understand there is plenty of constitutional legal precedent regarding privacy rights, and that full-body scanners at airports would fall within that established precedent as being permissible. On the other hand, I don't think there is any precedent for an individual mandate to buy health insurance. I suspect that question will be decided by the supreme court.
Generally, those who argue that the constitution is too old to allow us to address the problems of our modern world forget one important point: the federal government was not intended to solve all of our problems. We have state and local government as well which have powers that the federal government does not. For example, I would actually support many of the provisions in the current health care reform proposals if they were implemented at the state level, rather than at the federal level. Many people point to particular state-level success as evidence that we need to implement federal-level reform. I actually think it points to the opposite conclusion.
That could work. Sometimes the smaller, simpler stuff works better.
reply works fine on my computer Tidbits, but if it continues for you please email our tech guy Tyrone. Click on his name in the sidebar of masthead.
We've had a couple complaints about various re disqus in the last two days. This is a new one. Thanks. P.S. There are no erstwhile techs/editors at TMV. All are current. Just like they were at Carthage.
dr.e
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Trying again this morning.