General welfare clause - Page 3 - Tilted Forum Project Discussion Community

Derwood · 11-25-2009, 02:25 PM

Quote:

"Where in the Constitution, sir, do you see it authorized that Congress can be involved with "health care," or fund "health care"? I am asking here about the Constitution, not any court rulings. Thank you."

This was the content, in its entirety, of an email I received last night from John Lofton, editor of TheAmericanView.com, a friend and supporter of Constitutional Party 2004 presidential candidate Michael Peroutka, and—get this—communications director for an organization called the Institute on the Constitution. We heard a lot from last summer’s protesters and people like Mr. Lofton about the sanctity of the Constitution and constitutional principles. Granting that tea partiers and people who send me silly emails should not necessarily be taken seriously as constitutional experts, there nonetheless seems to be an unusually high level of either uninformed or knowing manipulation of the Constitution in service to pre-ordained agendas.

I’m not a constitutional scholar. (N.B.: Protestors and other critics attacking the president ought to take note that he is.) Nor do I want to get into specific constitutional controversies. My aim is to rebut a few of the most absurd fallacies that seem to have gained traction--primarily but not exclusively in conservative circles--about the nature of American constitutionalism. To wit:

First, there is the fallacy that anything not specifically prescribed by the Constitution is unconstitutional. True, the Constitution doesn’t mention health care; but neither does it mention air traffic control. Is the FAA’s safeguarding of our skies from commercial crashes therefore unconstitutional? Of course not. First, there is the matter of the “necessary and proper” clause. And second, just because the Founders clearly meant to avoid the whole business of constitutionalizing specifically policies--see point #3, below--doesn't mean they didn't want the government to have any policies. If they did, why create a legislature?

Second, and conversely, there is the fallacy that anything not specifically proscribed by the Constitution is constitutionally permissible. We have one of those nutty preachers who shows up in the common areas of campus. One of his favorite claims is that because the Constitution makes no mention of the separation of church and state, we are free to infuse church into state. He’s right about the omission, but the Constitution doesn’t mention sex with minors, incest, or gay marriage, and so, by the omission-is-permission logic an adult man could consummate his marriage to his 14-year-old nephew. I mean, the Founders didn’t say anything about not doing that, so it must be OK constitutionally, right?

Third, too few people wrapping their policy arguments in constitutional claims understand that the Founders wrote a short charter dedicated almost exclusively to the design, structure, officers and powers of the government because they wanted to avoid constitutionalizing specific policies. The Constitution has only thrice ventured into the prescription or proscription of a specific public policy: the slavery provisions, the prohibition of alcohol, and the enactment of the income tax. The first was the most glaring, nearly fatal problem with the original document; the second, initiated by amendment, was such a bad idea it led to the only direct reversal of a previous amendment; and the third, well, you’d think anti-tax conservatives would have long ago advanced the argument that constitutionalizing policies is a bad idea, given the establishment of the national income tax. Oh, and since the latter two were policies enacted via amendment, that means only slavery--which the Founders avoided mentioning by name--was an “originalist” policy. That should be cautionary tale enough. Look, the Founders were brilliant, but imperfect, but the part they were near-perfectly brilliant about was not constitutionalizing policies, which is what they designated the elected and appointed branches of government to handle.

Fourth, the federal court system is--brace yourself now--constitutional. The quote from Mr. London implies that a matter decided in some way by courts must be either unconstitutional, or at least inferior or suspect. Come again? Given the four previous points, the business of the courts is to clarify and fill in constitutional gaps, especially on matters where the Constitution is silent or ambiguous. We don’t need the Supreme Court to clarify whether one needs to be 35 years old to be elected president, but we do need it to decide whether torture is constitutional. The sad consequence of the decades-long campaign to systematically denigrate “liberal activist” judges—even though there are “conservative activists” aplenty on the federal bench—has been to delegitimize the court system and judges generally, as if they are impostors who have visited themselves upon our democracy by force and without invitation. So, even if the original or amended Constitution did, in fact, prescribe or proscribe a whole list of policies, that still doesn’t mean federal courts can’t insert themselves. Last time I checked, the federal court system was provided for by the Constitution's Article III; ignoring the courts is ignoring the Constitution.

Fifth, if you want to be a strict constructionist, fine, but be one even when it’s inconvenient. Imagine if the Second Amendment read as follows: “A woman’s ability to survive childbearing being necessary to a free state, the right to abort a fetus shall not be infringed.” Now, do you think the anti-choice movement would simply ignore the leading clause and resign themselves to the idea that a woman has an unconditional right to abortion? Not a chance, and they'd be right to fight because the language clearly implies a conditional right. And yet we almost never hear gun rights advocates mention the actual Second Amendment’s leading clause, “A well regulated militia being necessary to the security of a free state….,” which at least suggests a collective right—indeed, obligation—to an armed defense of the state, rather than an individual’s right to use arms to protect himself and his property. For the record, I support gun rights with some restrictions, but that’s besides my point, which is that you can’t be so selective in citing the language in the Constitution that you chop off inconveniently ambiguous parts of the same sentence upon which you base a categorical claim.

Well, I’m sure this is not an exhaustive list of the sort of rhetorical chicanery currently used by proponents of this or opponents of that. I love the Constitution and believe in it. But my ears tend to perk up the moment somebody reaches for the Constitution and the Founders to justify an argument--especially when they do so fallaciously and without an understanding of the historical meaning of the document.

Willravel · 11-25-2009, 02:29 PM

Article above from here. It's worth a read, I hope people check it out. 538 has been really at the top of its game recently.

dksuddeth · 11-25-2009, 02:49 PM

i read it earlier. it's a decent article, but obviously from someone with a 'living document' ideology. it doesn't work.

Derwood · 11-25-2009, 04:05 PM

Quote:

Originally Posted by dksuddeth

i read it earlier. it's a decent article, but obviously from someone with a 'living document' ideology. it doesn't work.

Refute his points

SecretMethod70 · 11-25-2009, 04:20 PM

Considering point three, I think it's pretty hard to argue against some sort of living document approach.

dksuddeth · 11-25-2009, 05:14 PM

The founders experienced an overbearing government. The ever changing policies enacted by a tyrant king, followed up by an unrelenting non-caring attitude over them airing their grievances, led the founders to independence. Having just experienced that and fighting against it to create their own independence, it seems highly unlikely that they would have written the constitutional powers to allow the newly formed congress to do whatever they wanted to in the name of interstate commerce, general welfare, or necessary and proper.

If somewhere in there is a secret piece of paper that says 'ha, fooled you all', i'd like to see it.

Willravel · 11-25-2009, 05:15 PM

I didn't see "whatever they wanted" when I read that article.

Derwood · 11-26-2009, 06:04 AM

There is a lot of gray area between "legislature doing whatever they want" and "everything needed to govern the country is in the original Constitution"

dksuddeth · 11-26-2009, 09:49 AM

There is no worse tyranny than to force a man to pay for what he does not want merely because you think it would be good for him. — ROBERT HEINLEIN

thought this was interesting, given the climate.

SecretMethod70 · 11-26-2009, 09:56 AM

Part of living in civilized society is contributing to the greater good.

"You can't always get what you want" - Rolling Stones (Since we're quoting irrelevant artists)

Derwood · 11-26-2009, 10:21 AM

FWIW, I don't think fining people for being uninsured is a great idea

---------- Post added at 01:21 PM ---------- Previous post was at 01:21 PM ----------

and I'm still waiting to hear why single payer health care is unconstitutional but the FAA isn't

SecretMethod70 · 11-26-2009, 10:35 AM

Agreed on both points Derwood.

filtherton · 11-26-2009, 12:45 PM

Quote:

Originally Posted by dksuddeth

There is no worse tyranny than to force a man to pay for what he does not want merely because you think it would be good for him. — ROBERT HEINLEIN

I didn't know Heinlein was so out of touch when it came to tyranny.

Willravel · 11-26-2009, 01:09 PM

Quote:

Originally Posted by dksuddeth

There is no worse tyranny than to force a man to pay for what he does not want merely because you think it would be good for him. — ROBERT HEINLEIN

Heinlein said this after serving in the Navy, using military medical treatment for his TB, and attending UCLA, making him either a tyrant or a hypocrite.

/science fiction nerd

Baraka_Guru · 03-04-2010, 07:33 PM

Quote:

Originally Posted by Willravel

Heinlein said this after serving in the Navy, using military medical treatment for his TB, and attending UCLA, making him either a tyrant or a hypocrite.

Did Heinlein say this or did one of his characters?

Brubricker · 03-07-2010, 02:03 AM

Quote:

Originally Posted by dksuddeth

The founders experienced an overbearing government. The ever changing policies enacted by a tyrant king, followed up by an unrelenting non-caring attitude over them airing their grievances, led the founders to independence. Having just experienced that and fighting against it to create their own independence, it seems highly unlikely that they would have written the constitutional powers to allow the newly formed congress to do whatever they wanted to in the name of interstate commerce, general welfare, or necessary and proper.

The power of Congress is limited by the right of the people to vote them out of office and replace them with representatives who have the full authority to nullify any previous act of Congress. Their power is also significantly constrained by the presidential veto.

Perhaps you feel that these checks on congressional power are not potent enough. So be it. The founders could easily have invented other checks if they had so intended but they did not. If you're unsatisfied with your representatives then get active in the election process. This is your right. What greater power could the people hope to wield?

11-25-2009, 02:49 PM	#83 (permalink)
dksuddeth Junkie Location: bedford, tx	i read it earlier. it's a decent article, but obviously from someone with a 'living document' ideology. it doesn't work. __________________ "no amount of force can control a free man, a man whose mind is free. No, not the rack, not fission bombs, not anything. You cannot conquer a free man; the most you can do is kill him."

11-25-2009, 04:20 PM	#85 (permalink)
SecretMethod70 Human Administrator Location: Chicago	Considering point three, I think it's pretty hard to argue against some sort of living document approach. __________________ Le temps détruit tout "Musicians are the carriers and communicators of spirit in the most immediate sense." - Kurt Elling

11-25-2009, 05:14 PM	#86 (permalink)
dksuddeth Junkie Location: bedford, tx	The founders experienced an overbearing government. The ever changing policies enacted by a tyrant king, followed up by an unrelenting non-caring attitude over them airing their grievances, led the founders to independence. Having just experienced that and fighting against it to create their own independence, it seems highly unlikely that they would have written the constitutional powers to allow the newly formed congress to do whatever they wanted to in the name of interstate commerce, general welfare, or necessary and proper. If somewhere in there is a secret piece of paper that says 'ha, fooled you all', i'd like to see it. __________________ "no amount of force can control a free man, a man whose mind is free. No, not the rack, not fission bombs, not anything. You cannot conquer a free man; the most you can do is kill him."

11-26-2009, 09:49 AM	#89 (permalink)
dksuddeth Junkie Location: bedford, tx	There is no worse tyranny than to force a man to pay for what he does not want merely because you think it would be good for him. — ROBERT HEINLEIN thought this was interesting, given the climate. __________________ "no amount of force can control a free man, a man whose mind is free. No, not the rack, not fission bombs, not anything. You cannot conquer a free man; the most you can do is kill him."

11-26-2009, 09:56 AM	#90 (permalink)
SecretMethod70 Human Administrator Location: Chicago	Part of living in civilized society is contributing to the greater good. "You can't always get what you want" - Rolling Stones (Since we're quoting irrelevant artists) __________________ Le temps détruit tout "Musicians are the carriers and communicators of spirit in the most immediate sense." - Kurt Elling

11-25-2009, 02:29 PM	#82 (permalink)
Willravel ... a sort of licensed troubleshooter.	Article above from here. It's worth a read, I hope people check it out. 538 has been really at the top of its game recently.

11-25-2009, 05:15 PM	#87 (permalink)
Willravel ... a sort of licensed troubleshooter.	I didn't see "whatever they wanted" when I read that article.

11-26-2009, 06:04 AM	#88 (permalink)
Derwood Who You Crappin? Location: Everywhere and Nowhere	There is a lot of gray area between "legislature doing whatever they want" and "everything needed to govern the country is in the original Constitution"

11-26-2009, 10:21 AM	#91 (permalink)
Derwood Who You Crappin? Location: Everywhere and Nowhere	FWIW, I don't think fining people for being uninsured is a great idea ---------- Post added at 01:21 PM ---------- Previous post was at 01:21 PM ---------- and I'm still waiting to hear why single payer health care is unconstitutional but the FAA isn't

11-26-2009, 10:35 AM	#92 (permalink)
SecretMethod70 Human Administrator Location: Chicago	Agreed on both points Derwood. __________________ Le temps détruit tout "Musicians are the carriers and communicators of spirit in the most immediate sense." - Kurt Elling