Have you noticed that a lot of our current political debate
often questions disagreements in terms of legitimacy? That is, opponents of a given policy are not
content with attacking the prudence of the policy, they instead ratchet up the
stakes by claiming said policy is somehow unconstitutional or immoral or
both. One recurring line of argument
goes like this: the federal government
does not have the constitutional authority to implement the program or
regulation that the government has put into effect. After all, the Constitution doesn’t say, for example, anything about
healthcare. Or the Constitution doesn’t say anything about providing unemployment
insurance. Yet the federal government
has instituted programs that do exactly that.
The powers of the federal government are delegated powers and,
therefore, the federal authority has limited powers; it is not free to just
legislate any old thing that the contemporary set of lawmakers wishes to initiate. Is this true?
Are programs such as Affordable Healthcare and Social Security plainly
illegitimate exercises of power?
Let’s look at the delegated powers of the United States. They, for the most part, are found in Article
I, Section 8. That portion reads as
follows:
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; but all Duties, Imposts and Excises shall be
uniform throughout the United States;
To regulate Commerce with foreign Nations,
and among the several States, and with the Indian Tribes;
To establish an uniform Rule of
Naturalization, and uniform Laws on the subject of Bankruptcies throughout the
United States;
To coin Money, regulate the Value thereof,
and of foreign Coin, and fix the Standard of Weights and Measures;
To provide for the Punishment of
counterfeiting the Securities and current Coin of the United States;
To promote the Progress of Science and
useful Arts, by securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and Discoveries;
To define and punish Piracies and Felonies
committed on the high Seas, and Offences against the Law of Nations;
To declare War, grant Letters of Marque and
Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no
Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide for calling forth the Militia to
execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and
disciplining, the Militia, and for governing such Part of them as may be
employed in the Service of the United States, reserving to the States
respectively, the Appointment of the Officers, and the Authority of training
the Militia according to the discipline prescribed by Congress;
To exercise exclusive Legislation in all
Cases whatsoever, over such District (not exceeding ten Miles square) as may,
by Cession of particular States, and the Acceptance of Congress, become the
Seat of the Government of the United States, and to exercise like Authority
over all Places purchased by the Consent of the Legislature of the State in
which the Same shall be, for the Erection of Forts, Magazines, Arsenals,
dock-Yards, and other needful Buildings;--And
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.
Now
some of this language sounds a bit specific.
For example,
To exercise exclusive Legislation in all Cases whatsoever, over such
District (not exceeding ten Miles square) as may, by Cession of particular
States, and the Acceptance of Congress, become the Seat of the Government of
the United States …
This provision allowed the federal government to establish
Washington, D. C. But most of the
language is not specific and is subject to a wide range of interpretations. For example,
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 …
“Provide for … general Welfare of the
United States”? Please; the purpose of
the founders of this republic was to form a government that could govern,
period. Add to this the power to
regulate interstate and international commerce and you have a government that
does not need to have specific reference in the Constitution to establish and
maintain any program the Tea Party, libertarians, or any other faction of the
extreme right wing wants to undermine with inflammatory language - language
that questions their legitimacy on constitutional grounds.
And which body determines the meaning and
constitutionality of any law? Not Congress,
not the President, but the Supreme Court and that court provides this function
as citizens bring legal action that questions the constitutionality of a
specific law. And each of the laws and
programs that the extreme right wing has objected to has been so questioned and
has been deemed legitimate under the auspices of the Constitution.
Enough with the language; those who use it
are undermining the legitimacy of our government and are adding to the general
level of cynicism. This is not justified
and is very harmful to the general welfare.
