I suspected that Wyatt Troia’s editorial piece in The Crimson would drive some political discussion at Harvard. After reading Sam Barr’s response, I think it is telling that Sam essentially cedes Wyatt his point that much of the liberal agenda does not have a Constitutional basis. However, by raising a number of pedantic issues that supposedly highlight infidelity with the Constitution, I wonder if Sam is belittling the importance of legislation aligning with the enumerated powers in the Constitution.
For instance, Sam brings up a number of issues that are linked to the development of technology beyond the conception of the Framers of the Constitution. Can we have airmail and an Air Force, even though Section Eight only enumerated Congress to provide for “Post Roads” and an “Army and Navy”? Interestingly enough, University of San Diego law professor Mike Rappaport cited Sam’s second point as a prime example of “bad originalism” that supposedly discredits orginalist legal theory. Professor Rappaport, expanding in a second post, explains that the question of an Air Force is essentially that of organization and semantics. As he writes,
“Consider the following situation. Congress decides that instead of creating a single Department of the Navy, with a single Secretary of the Navy, it creates two departments: Navy Department A and Navy Department B. They are independent of one another, but both are under the control of the Secretary of Defense and the President. Would this be constitutional? Of course. There is nothing in the Constitution that requires a single department.”
The charge of unconstitutional Air Mail is even more easily explained. Its justification is even within the Constitution, in the oft-used Necessary and Proper Clause. Anyone, except the most argumentative, would say that the clause giving Congress the power to “establish Post Offices and Post Roads” establishes mail delivery by the government. While some might comment that a conservative should not use the maligned Necessary and Proper Clause, this is a case when it clearly applies. Since I seriously doubt any debate occurred in the Constitutional Convention over whether this allowed Congress to hire hand carriers, pack mules, or stage wagons to transport mail over the Post Roads, I think we can take the liberty of flying our mail on what could easily be termed Roads of the Sky.
Now I realize that these examples Sam raised are more farcical than real. I go into length to demonstrate their constitutionality in order to show that even in these simple examples, there is an underlying basis in the constitution. By using what Rappaport terms “bad originalism,” Sam seems to diminish the seriousness of the debate on constitutionality. This debate is not just an academic exercise. The question on whether a bill (such as mandated health insurance) is constitutional is greatly important. After all, we have a Constitution to delineate what our government can and cannot do, so it would be useful to make sure it is followed. Unfortunately, as Wyatt cited in his article, even the former Speaker of the House seems to treat the discussion of constitutionality with disdain.
I will finish by responding to Sam’s hypothetical questions with the hypothetical question that Senator Tom Coburn raised during Justice Elena Kagan’s hearings: “If I wanted to sponsor a bill and it said Americans, you have to eat three vegetables and three fruits every day and I got it through Congress and that’s now the law of the land, got to do it, does that violate the commerce clause?” Given that the current argument for the individual mandate seems to be part Commerce Clause, part “the Constitution enshrines principles and goals,” would Sam (or anyone else) argue that in the pursuit of a healthy America, the government can, in addition to forcing us to obtain a healthcare plan, force us to eat healthy foods and fulfill a minimum quota of exercise?
