The Constitution gives Congress explicit power to regulate commerce among the states. Every baby born in America will eventually use public transportation and the interstate highway system. Population increases require greater congressional expenditures to build and maintain those systems.
So to prevent increases in the population with the attendant costs to the public, would Vice President Joe Biden (recall his recent China trip) say that Congress has power to regulate commerce among the states to limit the number of children a family might be allowed to have to one or two? To require the use of contraception or abstinence?
When the Constitution was adopted, the governments of the several sovereign states were not abolished. But the very people who set up the states, decided that states were good at some things, and not very good at others. Those powers the states possessed, but were not very good at exercising, were taken away and vested in the new federal government.
The powers vested in Congress are generally known as "enumerated powers" because they are "enumerated" in Article I. That article has not been amended since the date it was adopted. The 18 enumerated powers include:
-- Power to lay and collect taxes ... to pay the debts and provide for the common defense and general welfare of the U.S.
-- To borrow money on the credit of the U. S.
-- To regulate commerce with foreign nations, and among the several states.
-- To establish a uniform rule of naturalization.
-- To coin money, and regulate the value thereof.
-- To establish post offices and post roads.
-- To punish piracies and felonies on the high seas.
-- To declare war.
-- To raise armies.
-- To provide and maintain a navy.
-- To make all laws which shall be necessary and proper for carrying into executing the foregoing powers.
There is no grant of power to Congress to establish a religion, regulate speech, or abolish the right to bear arms. But what if Congress, having enumerated powers, expanded them under the theory that the Constitution was a non-rigid, flexible, dynamic, living document, and under the theory that such an expansion was "necessary and proper" for carrying into execution one of its 17 other enumerated powers? What if Congress decided that pursuant to the power granted to it to "lay and collect taxes to provide for the general welfare," that it was "necessary and proper" that it should subsidize the Catholic faith over the Jewish faith?
What if Congress decided that the holy days of the disparate religions were burdening interstate commerce, and that it should establish one religion under its power to regulate commerce so as to remove the time lost by disparate holy days?
To make sure that sort of thing didn't happen, 10 Amendments, known as the Bill of Rights, were added to the Constitution in 1791.
The Bill of Rights was passed because the American people were afraid that even though Congress had only been given certain enumerated powers that, left to its own devices, it would, like every other government, seek to expand those powers in the name of necessity. The First Amendment contains an unequivocal statement that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging freedom of speech or the press." The Second provides that "the right of the people to keep and bear Arms, shall not be infringed."
Most Americans are aware of at least some of the amendments. But few seem to be aware of the 10th.
"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."
Nowhere is Congress given the power to say what marriage is, or what a state may prohibit as constituting, murder, burglary, or theft.
Nowhere is Congress given power to say whether a man and his wife my opt to use a contraceptive. As the states clearly had power to define marriage, and punish criminal offenses before the Constitution was enacted, and since no such power was delegated to Congress, these are powers "reserved to the states." And a married couples choice to employ or not to employ a contraceptive is similarly a question "reserved" either to the "states" or the "people." As a further guarantee, the 9th Amendment provides, "The enumeration in this Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
That means, the fact that Constitution expressly says that a man has a right to trial by jury does not mean that he does not also "retain" the right to share a contraceptive with his wife.
The Preamble states that a goal of the new Constitution was to "promote the general welfare." But if Congress can pass any law that it deems "promotes the general welfare," why bother to enumerate 18 specific powers? They become surplusage. And the Bill of Rights becomes a nullity.
Conservatives do not deny the Constitution is a dynamic, living document. But they believe it must be construed as the founding fathers intended it to be construed -- with the states and people exercising the "reserved powers" and with Congress exercising only those powers specifically granted to it by the Constitution -- which the people of the states decided could better be exercised by a federal government!
So, when you authorize the painter to paint your living room, is it also "necessary and proper," or for your "general welfare" for him to paint your car?
Posted Online: Sept. 07, 2011, 2:23 pm - Quad-Cities Online
by John Donald O'Shea
Copyright 2011, John Donald O'Shea
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