What the Constitution Really Says

[dajoki]

WP
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Taking on the Week's Big Issue: Domestic Surveillance
Posted at 08:38 AM ET, 01/17/2006
What the Constitution Really Says
G'day (and all that other Aussie lingo) from Adelaide!

While I'm here in the opposite hemisphere, The Debate is going to be a little more free form. Today, we have a thought-provoking post from Guest Blogger Jason Scorse, a professor who decided to take a closer look at the document that provides the foundation of our democracy.

* * *
The U.S. Constitution, like the Bible, is oft-quoted but rarely read. I recently decided to reread the document to see what the Founding Fathers had in mind for our government and society in their own words. I discovered some very illuminating things, which are sure to irritate both conservatives and liberals, Democrats and Republicans:

Article. I. Section. 8.
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States …

So what’s all this about social programs, entitlements, and the New Deal being unconstitutional? The Constitution clearly and plainly states that the government may tax the citizens for the promotion of the "general welfare." I can’t think of things that fit the description of general welfare better than retirement insurance or basic health care. Certainly pork-barrel spending and corporate welfare don’t meet this criteria.

The next time a "conservative" tells you that national healthcare would be a socialist abomination and that social security is unconstitutional please tell him to go read Article 1, Section 8 and get back to you.

[rwenos]

1. A Broader Source of Congressional Power

Is the Commerce Clause -- Art. 1, Section 8.(3): "The Congress shall have Power . . .

"To regulate Commerce with foreign Nations, and among the several States."

This clause has been interpreted EXTREMELY broadly. Even the Civil Rights Act of 1964 is powered by the Commerce Clause, instead of the 14th Amendment." (Bobby Kennedy, in an act of political genius, felt the Civil Rights Act would be less vulnerable to the inevitable attack from southern states as an exercise of the Commerce Clause, rather than utilizing the enabling clause of the 14th Amendment as the Constitutional authority for the Civil Rights Act.)

Law School joke: "The Commerce Clause is as big as all outdoors."

(This is an example of why law students are b-o-r-i-n-g, even to themselves.)

[baby_bear]

2. rwenos, can you explain the commerce clause in light of today's decision?

Scalia, in dissent said the following, in part:

The prohibition or deterrence of assisted suicide is certainly not among the enumerated powers conferred on the United States by the Constitution, and it is within the realm of public morality traditionally addressed by the so-called police power of the states. But then, neither is prohibiting the recreational use of drugs or discouraging drug addiction among the enumerated powers. From an early time in our national history, the federal government has used its enumerated powers, such as its power to regulate interstate commerce, for the purpose of protecting public morality—for example, by banning the interstate shipment of lottery tickets, or the interstate transport of women for immoral purposes. Unless we are to repudiate a long and well-established principle of our jurisprudence, using the federal commerce power to prevent assisted suicide is unquestionably permissible. The question before us is not whether Congress can do this, or even whether Congress should do this, but simply whether Congress has done this in the CSA. I think there is no doubt that it has.

Can you help me understand this, in particular the commerce part?

thanks
b_b

[rwenos]

4. The "Affectation" Doctrine

You're right that there's a long history of the Commerce Clause being stretched to fit many different contexts. Some scholars I've read have even contended the Commerce Clause gives Congress a general police power -- which as you accurately state, is generally understood to reside in the several states, not the federal government. This is what makes the federal government "one of limited powers," as it is frequently referred to.

I can't explain Scalia's reasoning, but what's odd about it is that the Court (for the first time since West Coast Hotel v. Parrish, the "switch in time that saved nine" in 1937) has been overruling acts of Congress in the last few years -- for the first time since the New Deal. The Court has overruled legislation using the Commerce Clause regarding gun control, and recently I believe to invalidate portions of the Violence Against Women Act signed by President Clinton.

The only realistic explanation is Scalia wants to vote a certain way, so he's going to do it, and erect a bad-faith reasoning process to "justify" his vote. What else explains his chickensh*t sophistry in Bush v. Gore? Scalia is a lousy justice -- not because he's a conservative, but because he twists precedent and writes intellectually-dishonest opinions.

[baby_bear]

6. I'm not sure if there is a DU forum dedicated to SCOTUS

If not, we shoul start one....

b_b

[pat_k]

3. You don't need a law degree to know their violations are criminal

You don't need a law degree to know their violations are criminal abuses of power. You don't even need a high school diploma to know that the absolute power they claim and wield is never freely given to a leader; it is only taken by deception or force.

Worse than spying, to coerce us into the illegal war of aggression they were hell-bent on waging, they terrorized us with the most colossal bomb threat in history -- mushroom clouds over our cities in 45 minutes.

The notion that we have divided power equally among the branches is just another fascist fantasy. As the expression of our will, we have given Congress power over the other branches. We gave the House of Representative, the body most responsive to our will, "the sole power of Impeachment." Of course, we sometimes pass laws to address specific problems that conflict with the principles we have established in our Constitution. To ensure that, as we strive to create a more perfect union, our laws are the best reflection of our will possible in this imperfect world, we have given the task of resolving those conflicts to the Judiciary. We have NOT given the Judiciary the power to override our will, only to reconcile conflicts.

When the Bush Syndicate flagrantly violates our laws, they are committing crimes against the most basic tenet of our Constitutional Democracy -- that WE THE PEOPLE are sovereign, Congress is OUR voice, and the laws we enact must be respected as expressions of our sovereign authority.

[dajoki]

5. well said n/t

[Sammy Pepys]

7. You'll always get an argument about the "general welfare" clause

That provision was contentious even during the Constitutional convention, when the Federalists (Hamilton) wanted a broader read of it (and by extension the spending power) than Madison and Jefferson wanted.

[underpants]

8. "citizen" appears no where in the Bill of Rights

look it up. It says "people" oh and "Taxpayer" doesn't show up until the 16th amendment.