Constitutional experts seem all the rageOne of my colleagues — herself both an editor and a member of the bar (the legal bar and not the type of bar other journalists have been known to prop up) — remarked the other day that suddenly every Joe in the country has become an authority on the Constitution.
By: Reg Henry, The Dickinson Press
One of my colleagues — herself both an editor and a member of the bar (the legal bar and not the type of bar other journalists have been known to prop up) — remarked the other day that suddenly every Joe in the country has become an authority on the Constitution.
It is true. Oddly, the people who now care passionately about the Constitution didn’t seem to think much about it previously, excepting, of course, the Second Amendment, which they considered the whole constitutional shooting match.
They slept the sleep of the innocent during the Bush administration, despite the racket made by the Constitution-shredder in the White House basement. And they certainly didn’t approve of the American Civil Liberties Union defending pesky parts of the Constitution, especially if this vindicated the rights of people they didn’t like.
But now that they have become constitutional experts, they no longer sit around saying, “How about them Steelers?” They say instead, “How about that 10th Amendment?” A timely reason exists to focus on this amendment. The passage of national health care legislation has made the 10th the Amendment of the Month for the new generation of constitutional scholars. Various state attorneys general are suing on the basis of its wording, which is quite clear: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
At least this would be clear if the preceding amendment, the 9th, which is also clear, sort of, didn’t say: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Is health care a right of the people? I think that might be a stretch, but apparently we should tread carefully in disparaging the idea.
There’s more to vex the new amateur legal experts. The Constitution, of course, does not specifically mention a federal role in health care. How could it? Medicine was a primitive art back in the day and the application of poultices and leeches was standard practice, which for good reason no one was keen to expand into a federal program. (A pity — perhaps the leeches could have been covered under the right to bare arms.) But you don’t have to go far into the Constitution to find some justification for health care reform today. In the preamble, and again in Article I, Section 8, promoting or providing for the “general welfare” is specifically mentioned.
You don’t think health insurance for millions more people qualifies under the Constitution’s concern for the general welfare? You are in luck. We have a spare dose of leeches for you.
On top of all this, there’s the famous Commerce Clause, also to be found in the same section, wherein Congress is given the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”
You don’t think medical care in this country is all about big business? We are going to run out of leeches at this rate.
Now, these are commonsensical observations about the Constitution. I am no more an expert in legal matters than Joe holding forth on the next tavern stool.
But I do know that in focusing on the 10th Amendment, the amateur lawyer immediately finds himself at the heart of a constitutional debate that has been raging since the beginning of the republic about the proper relationship between the federal government and the states. This amendment, once cited as justification for states having slavery, is not as simple as it looks.
As for the alleged atrocity of Americans being forced to pay for their own health care, we the people do something similar right now. If you own a factory, put up a building or sell food, you are likely put to extra expense to comply with federal law concerning the general welfare. This happens in ways too numerous to count, and the public interest would be seriously harmed if it didn’t.
To bring it home personally, while introducing a note of helpful nudity to restore interest, consider that you are implicitly obliged by the government to buy clothes for yourself. In most settings, you can’t walk naked down the public street. Local laws, sanctioned by the Constitution, frown upon this. And don’t show up nude at the Supreme Court to argue your case. For one thing, you won’t have a pocket to put your pencil.
Here’s a naked truth for the new legal scholars in our midst: The Constitution, created at the beginning, is not so easy for beginners or anyone else — and saying something is unconstitutional doesn’t make it so.
— Henry is a columnist for the Pittsburgh Post-Gazette. E-mail him at rhenry@post-gazette.