Opponents of the newly-enacted health care reform legislation have taken their fight to court, with the attorneys general from nearly 20 states taking part in a lawsuit that claims the new law is unconstitutional. Do they have a case? Let’s take a look at the arguments I’ve seen used.
Argument 1: Health Care isn’t mentioned in the Constitution.
Not every power of the Federal Government is explicitly mentioned in the Constitution.
Yes, it’s true that Health Care isn’t mentioned in the Constitution. But neither was the military draft, for example, and the Supreme Court found it Constitutional anyway (Selective Draft Law Cases, 245 U.S. 366 (1918)). Why? Because Article 1 Section 8 Clause 12 expressly grants Congress the power to "raise and support Armies" and from that enumerated power comes the implied power to conduct a draft. This concept of implied powers has existed since the time of the Founders and has been upheld by the Supreme Court as far back as McCullough v. Maryland in 1819. Why would the Founders have left parts of the Constitution up to interpretation; to require future generations to read between the lines?
The Founders realized that the Constitution needed to be flexible to accommodate the future.
One of the Founders, Edmund Randolph, stated at the Constitutional Convention in Philadelphia that in order for the Constitution to be a workable document, the framers should "insert essential principles only; lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events".
In Federalist #44, James Madison argues that if every power had to be explicitly stated, it "would have involved a complete digest of laws on every subject to which the Constitution relates; accommodated too, not only to the existing state of things, but to all the possible changes which futurity may produce".
There have been competing interpretations of the Constitution from the very beginning.
Madison came to regret his words just a few years later. Even though they had tried to heed Randolph and use "simple and precise language" when drafting the Constitution, the Founders came away from Philadelphia with different understandings of its meaning.
In 1790, Alexander Hamilton proposed the creation of a Central Bank, contending that the power to create one was implied since Congress was allowed "To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures" (Article 1 Section 8 Clause 5). Madison objected, charging that a bank went far beyond the scope of what was "necessary and proper", and that "at most it could be but convenient". He argued strenuously for a strict construction of the Constitution, only to have his own words in Federalist #44 used against him (at the time, the author of Federalist #44 was unknown, so no one on the opposite side of the debate in Congress knew they were turning Madison on himself). In the end, President Washington agreed with Hamilton and signed the bill creating the Bank of the United States. So, Broad vs. Strict Construction goes back to the very beginning of the Republic and is nothing new; and through most of our history, Broad Construction has won out.
Next time, I’ll take up with the argument that health care reform violates the 10th Amendment.
Go to Part 2