A Bitter Argument
August 2, 2001
This
morning I got into an argument with my old friend Marv, a retired army
officer. Hes a conservative Republican, and we agree on most subjects, and
we are both mild-mannered Midwesterners.
But today, at the coffee urn at
McDonalds, we found ourselves hurling hot, wounding words at each other
along the lines of Well, I dont know about that, Marv,
and I beg to differ with you, Joe, and even Are you really
sure about that?
But once youve said them, you
cant take them back. They may fester for years, and the friendship is never
quite what it was before. You may secretly regret every coarse expression
every menacing heck and doggone (a Midwesterner resorts to such
language when he wants to intimidate the other guy) but its too
late. Youve already drawn blood without making your point.
Its sometimes hard for people from
New York or Los Angeles
to tell when Midwesterners are upset. One way is when they start throwing the
word darn around with abandon. When Marv says darn, I know
its time to back off. A sensitive nerve has been struck.
The nice thing about writing a column is that
you can collect your thoughts and say the things you couldnt think of in
time during the heat of argument. So here goes.
Marv and I were disagreeing about the U.S.
Constitution. He was arguing that it was written so long ago that it cant be
applied literally to todays events. Modern inventions alone have made it
somewhat obsolete.
For example, he said, the Constitution
authorizes Congress to raise armies and navies. But what about an air force?
Well, I retorted (too furious to think straight),
there are several ways to approach it. You could argue that an air force is just a
flying army, and is already covered by the Constitution. Or, if that one
doesnt fly (no pun intended, of course Midwesterners dont
make puns), you can just amend the Constitution.
In my rage Id overlooked the
real point. Of course there are bound to be gray areas. But most areas arent
gray. An old Midwestern adage teaches us that hard cases make bad
law.
Recently Congress has been debating
legislation on cloning, farm subsidies, patients rights, campaign spending,
and other matters. Ive searched the news accounts in vain for a single
congressman to raise the basic question, the first question that should be asked
about any proposed federal law: Where does the Constitution say we can do
this?
In other words, every federal law has to be
authorized under a clause delegating a power to the federal government. If there is
no applicable clause, the proposed law is unconstitutional.
Okay, so there are going to be difficulties in
applying these clauses. Do veterans pensions fall under the power to raise
armies and navies? We can debate such things. But we have to start with the
principle that the necessary power, however broadly or narrowly it may be
construed, must be listed in the Constitution. Whatever isnt authorized is
forbidden.
And the point is that this principle no longer
comes up at all. Congress acts, day in, day out, on the presumption that it can pass
any law it pleases, regardless of whether it has constitutional permission. And no
matter how lacking in authorization the law may be, Congress can count on three
things: (1) the president wont veto it on those grounds; (2) the Supreme
Court wont strike it down; and (3) the watchdog press
wont notice that its unconstitutional.
That last point is especially important. The
press doesnt really tell the public the full story, because it doesnt
know the full story. It knows very little history, especially constitutional history.
So it cant report on pending legislation in terms of the vital question of
whether a proposed law is grounded in the Constitution which Congress is
supposed to be upholding. Like Congress itself, the press assumes that
Congresss power is more or less unlimited.
But who doesnt assume that
nowadays? To most Americans, the very idea of limited government now seems
about as quaint as the divine right of kings. They may know all about the latest
refinements in cars and computers, but they dont know their own political
heritage. Its a real pity.
I think Marv, in his calmer moments, would
agree with me on that.
Joseph Sobran
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