From time to time, I find myself having one of those utterly pointless arguments on-line with one or another of my Tea Party Constitutionalist friends, usually over Obamacare and its presumed unconstitutionality. The arguments and counter-arguments are as predictable and compulsory as the steps of a quadrille. My esteemed adversary starts with Article One Section Eight of the Constitution, which enumerates 17 duties of Congress, none of which involves regulating health care. That means that health care falls under the 10th Amendment; it’s a state duty, something the federal government is prohibited from dealing with. There are two possible responses. The first is that the Affordable Care Act (Obamacare) was passed by the House and the Senate, signed into law by the President, and found constitutional by the Supreme Court. Ipso facto: it’s constitutional. That’s actually the only argument that matters. But we can engage him on his own turf if we want to: Article One Section Eight begins by stating “The Congress shall have power to . . . provide for the general welfare.” The seventeen enumerated duties are best understood as suggestions, as describing the kinds of things Congress can and should do. Plus, one of the enumerated duties is “regulate interstate commerce,” which health care absolutely is–commerce, which crosses state lines. So it’s constitutional.
And then we shout at each other for awhile. “Emumerated duties! Tenth Amendment!” “General Welfare clause! Fourteenth Amendment!” Very entertaining. Not.
I mean, look, it’s great that people are reading the Constitution. But governing in the 21st century should involve a lot more than a knack for parsing eighteenth century texts. It’s quite true that the Framers didn’t say anything about health care in the Constitution. Neither did they say a word about regulating television stations, air traffic control, or gene splicing. Imagine it: “Congress shall have power to regulate health care, if, in future, the practice of medicine improves to the point that doctors can actually make sick people better.”
The Constitution was written in intentionally spare prose, laying out general principles of governance, without tying down future generations with overly prescriptive specifics. Tea Party Constitutionalists try to impose on the Constitutional text a sort of fundamentalist reading, just as Christian fundamentalists try to impose a literalist reading onto the Bible. Even when it doesn’t make sense. And it doesn’t mostly, in either case.
The Constitution isn’t just a document, it’s history, tradition, practice. It’s a series of ideas that become constituted into our political culture. It’s not a straitjacket, binding us; it’s liberating, empowering. It’s never meant to prevent Americans from doing essential things that need to be done.
Case in point: Thomas Jefferson, in 1803. In Washington’s Farewell address, he had said “it is our true policy to steer clear of permanent alliances with any portion of the foreign world.” Jefferson, in his Inaugural Address in 1801, put it more strongly, calling for “honest friendship with all nations, entangling alliances with none.” A nice sentiment, but Europe was plenty entangled, engaged in a massive war, with basically all European nations either allied with or against Napoleonic France. A despot, a tyrant, a power-mad dictator, Napoleon, intent on world conquest, and against him, really just England, comparatively democratic, but only comparatively, and a nation from whom we had just freed ourselves. And Napoleon was making noises about expanding his empire to the New World. France had acquired, in 1800, vast amounts of American territory–what was then called ‘Louisiana’, but extending all the way to Oregon–from Spain. Haiti, just off the American coast, was convulsed in a slave rebellion, led by one of the most remarkable and tragic figures of the period, the extraordinary Toussaint L’Ouverture; Napoleon had sent twenty thousand troops to overthrow him, and was assembling a huge fleet to support that effort. Could he send another army to Louisiana? If so, would he attempt to overthrow the US? Jefferson sent James Monroe to France to see what diplomacy could accomplish.
A lot, it turned out. France’s Haitian adventure had ended in disaster, with yellow fever wiping out most of Napoleon’s army. His navy was iced in off the coast of Holland. Napoleon was in the mood to deal, and he needed cash. We could buy Louisiana for $15 million.
The Constitution does not permit the President of the United States to acquire territory via purchase. It does not specifically permit Congress to do it either. And Jefferson believed in limited government, and in a strict construction of the Constitutional text. In fact, he’d been elected President on just such a platform. So his first thought was to pursue a Constitutional amendment. But amendments take awhile, and this deal was on the table now. And Napoleon was not a man known for patience and forbearance, and he continued to have ambitions in our hemisphere. (In fact, after Waterloo, in exile, Napoleon continued to scheme; if he could raise another army, he’d take French Canada, and from there, the United States. Dangerous dude).
So what to do? On the one hand, the Constitution did not allow the purchase. On the other hand, Louisiana was huge, and immensely valuable, and available at a very reasonable price. So Jefferson did it. Here’s his reasoning:
To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life liberty, property and all of those who are enjoying them with us: thus absurdly sacrificing the ends to the means.
Sophistry? Maybe. But what do we know Jefferson’s Presidency for? First and foremost, the Louisiana Purchase. I might note that Jefferson bought it from France, without consulting with the various native peoples who actually lived there. Still, it made our country. It was huge.
And his speech, justifying it? Lincoln loved that speech. He expanded on the thought thus:
The legitimate object of government is to do for a community of people whatever they need to have done, but cannot do, at all, or can not, so well do, for themselves, in their separate and individual capacities.
Such as, for example, one of the great Lincoln innovations, the Homestead Act. Property redistribution is not, as it happens, specified as an enumerated duty in Article One Section Eight. (Like expanding health care coverage to everyone). Lincoln did it anyway, because it was a good idea, well worth implementing.
Another example: the First Amendment. “Congress shall make no law . . . abridging the freedom of speech, or of the press.” Clear enough: Congress can’t restrict free speech. Well, all right, what about the President? If Congress can’t restrict free speech, can the executive branch? What about governors? What about state legislatures? What about city mayors? The Constitution doesn’t say one word about mayors.
Specifically, let’s suppose the mayor of Provo, where I live, got the City Council to pass a city ordinance that prohibited billboards, yard signs, or any other advertising for any other candidates for mayor? What if he prohibited the local newspaper from publishing unflattering stories about his actions as mayor? Or public speakers–what if they weren’t allowed to speak out against him, at all, ever? (Let me hasten to add that our current mayor would never do anything of the kind). Would that be legal? Would it be constitutional?
Of course not. It doesn’t matter that the Constitution says ‘Congress shall make no laws. . . .” When the Framers wrote that, they asserted that freedom of speech, especially political speech, is a central American value. No one in government, at any level, can abridge it. (We should point out that an actual Founder Father DID try to abridge when he became President, when John Adams got Congress to pass the Alien and Sedition Acts of 1798. And that we today consider it the biggest blunder of his Presidency).
But let’s suppose that our fictional Mayor was troubled by some group that put up billboards using offensively racist language, arguing that African Americans be lynched. Let’s suppose that he ordered city police to tear that billboard down. Would he be justified? The text of the Constitution doesn’t help us out here; it just says that ‘Congress’ can’t abridge the ‘freedom of speech.’
But we have centuries of tradition and precedent going on here. A public billboard can’t be used for inflammatory speech calculated to disturb the peace. Precedent and tradition says the Mayor could declare that billboard a public nuisance; that some speech is not constitutionally protected; shouting ‘fire’ in a crowded theater, for example.
And when we talk about ‘freedom of speech,’ we think of it as part of ‘the Constitution.’ And we’re right to do so, because in addition to the text of the Constitution is our tradition with it, our practice with it, the way it informs our everyday discourse, the way it interacts with our culture. It doesn’t matter that the phrase separation of Church and State’ isn’t found in the Constitution–that phrase describes the way the First Amendment actually functions in American society. It’s constituted in our institutions, it’s constituted in our practices, it’s constituted in our hearts.
That’s the glory of the Constitution, not a narrow parsing of its deliberately (at times) ambiguous text, but the way it really, actually works. We use the constitution, the way a carpenter uses a really good tool. And that’s why Obamacare’s constitutional.