There’s something almost adorable about the way some people with a limited grasp of our nation’s constitution attempt to lean on, twist and otherwise molest the document in an attempt to support their own world view. The latest incident came after a reporter asked Nancy Pelosi where the Constitution empowered Congress to enact an individual health insurance mandate. Her response, calling the question itself “ridiculous,” has brought one of the old legal bogeymen back into the public eye. For those who stayed awake in school, of course, it should be obvious that the reporter asked the wrong question.
What he should have asked was, “Madam Speaker, do you really think the Supreme Court would let you get away with such a blatantly unconstitutional move?” Had he done that, Pelosi could have said, “What a ridiculous question. They always do!”
And she would have been right, except for the use of the word “always,” unless she modified it to say, “always since 1942.” (More on that date later.)
Still, the Speaker’s glib response has caused some people to point to the hilarious attempt at a defense mounted by Professor Darren Lenard Hutchinson. You’re free to browse through it for amusement value, but here are the telltale bits to watch for.
Also, as many students of high school and college civics classes know, Article I of the Constitution contains the “necessary and proper” clause, which endows Congress with unenumerated powers that are needed to carry out its expressly delegated powers. In the very first case interpreting this provision (McCulloch v. Maryland), the Supreme Court rejected the narrow interpretation offered by anti-federalists.
The consistent efforts by nanny-state advocates to read something into the constitution which simply does not exist always seem to go back to both the “necessary and proper” clause and McCulloch v. Maryland, though why this attempt is made remains a mystery. But there are two portions to this facetious argument which appear consistently.
First, the professor invokes the “necessary and proper” clause, which many people seem to attempt to conflate with the “general welfare clause” arriving at the false conclusion that the Constitution empowers Congress to do whatever is required to ensure the general welfare of the people. All of these champions of federal supremacy seem to conveniently forget that there are a few more words attached to the actual clause in question.
To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.
The clause does not represent some indication of a shadowy list of “other powers” as needed to suit your convenience. It simply establishes a mandate for Congress to be able to enact legislation to carry out the specific powers which are granted. If we were to assume that this empowers Congress to do whatever it wants as long as it promotes the “general welfare” then just as Professor Hutchinson argues from the other side, the rest of the document could just be thrown in the trash.
This brings us back to McCulloch v. Maryland, which also seems to engender a great amount of confusion. For those not familiar, James McCulloch was a cashier at the Baltimore branch of the second Bank of the United States. He refused to pay a massive tax on the branch, levied by the state of Maryland in an effort to destroy the bank, which the state government felt was unconstitutional.
Chief Justice Marshall rejected Maryland’s argument, and while debate still raged around the nation over whether or not the federal government should be able to establish such a bank, the court found that it fell under the umbrella of what was “necessary and proper” for Congress to regulate commerce between the states, as specifically provided for in Article 1, Section 8.
Marshall went on to argue that while the powers of government are limited, the “necessary and proper” clause was meant to enlarge the ability of Congress to carry out its enumerated powers. He wrote: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional…”
Of course, later courts have worked with Congress with a wink and a nod to undermine that finding. The courts held a fairly strong line in reigning in federal overreach, with a few minor exceptions, until the 1940’s. Largely, they relied on the written opinions of the founders, including James Madison, as noted in an excellent analysis by Walter Williams.
Indeed, as James Madison, the father of our Constitution, explained, “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”
The first serious breach in the dam came with a jaw dropping decision from SCOTUS in 1889. As explained in this analysis, it was the first time that the court actually stepped up to the plate and said they didn’t really give much of a hoot about what the founders intended.
The Supreme Court tried to stem the tide by holding legislation to the limits defined by the enumerated powers. Pressure from Congress and presidents gradually overcame the resistance of the courts. The first big crack in the defense appeared in 1889, when the Supreme Court ruled that the commerce clause was a positive grant of power to regulate the economy. They actually came out and said that “The reasons which may have caused the framers of the Constitution to repose the power to regulate commerce in Congress do not…affect or limit the extent of the power itself.” Once the reasoning of the writers of the law is ignored, any interpretation becomes possible.
The final blow came with the case of Wickard v. Filburn. A farmer was fined by the federal government for growing more wheat than a new, federally mandated quota would allow. The court then invoked the commerce clause in the completely farcical way which later became common.
Filburn was a small farmer in Ohio. The Department of Agriculture had set production quotas. Filburn harvested nearly 12 acres of wheat above his government allotment. He argued that the excess wheat was unrelated to commerce since he grew it for his own use. He was fined anyway. The court reasoned that had he not grown the extra wheat he would have had to purchase wheat — therefore, he was indirectly affecting interstate commerce.
Experienced (and generally retired) members of Congress have regularly told stories about this. You see – and this is the key point – Congress has never made a serious attempt to claim that they have the power to pass any and all legislation which takes their fancy. They have always recognized that their laws must be made to look as if they fall within the constraints of Article 1, which is why they laughingly insert some boilerplate at the end of the most far reaching legislation coming up with some imagined reason as to why the forbidden behavior in question would affect “interstate commerce.” It infests our body of federal laws like ants at a picnic. And when a final health care bill hits the President’s desk for signing – assuming one does – I will make a wager here an now with any of you that it will contain that same boilerplate at the end. They know they don’t have the power to issue such a mandate under the Constitution unless they attempt to cloak it under the commerce clause.
There has been some good news of late, though. As pointed out in the Williams article linked above, in the 1990s the federal govt. attempted to impose the “Gun Free School Zones Act” which was challenged before the Supreme Court in U.S. v Lopez. The law also relied, amazingly, on the Commerce Clause to attempt to justify its existence. For once, the court rejected this fantastic rationale.
Why? Violent crime raises insurance costs, and those costs are spread throughout the population. Violent crime reduces the willingness of individuals to travel to high-crime areas within the country. Finally, crime threatens the learning environment, thereby reducing national productivity.
While all of this might be true, the relevant question is whether Congress had constitutional authority to pass the Gun-Free School Zones Act. The U.S. Supreme Court ruled it didn’t, saying, “If we were to accept the government’s arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate.”
So there may still be hope. But it’s a slim one. Pelosi is right to be confident in her belief that it’s “ridiculous” that the individual health insurance mandate would stand up in court.
For a different angle on why these nanny-state arguments hold no constitutional water, see Ed Morrissey’s response to Kathy Kattenburg. The word “mandate” has a very specific meaning, folks.
UPDATE: I’m already getting e-mails along the lines of, “Well, what about the Air Force?!?” Please don’t be so silly. First, read Morrissey’s explanation linked above. Second, try to remember that the very specific power to provide for military defense of the nation was granted to the federal government by the founders. Adding planes (which didn’t exist at the time of its writing) isn’t much of a stretch, just as it’s not much of a stretch to imagine that the establishment of a national bank to regulate and control currency among the states would fall under the regulation of interstate commerce. Really… this gets tiresome after a while.
Copyright 2009 The Moderate Voice