Over the past few decades, our legislators have come to act increasingly polarized. The result is an often-ineffective Legislative branch that fails to act prudently on some of the most important issues facing the United States of America, and the world, today. For many of the more contentious policies, such as the healthcare reform effort of 2009, this has lead to situations where far more time and energy is spent claiming a particular provision in a piece of legislation is unconstitutional, when it is more often than not an ideological split, instead of debating the substance of the bill in order to determine if that particular law will be effective and beneficial.
While our legislators might legitimately quarrel over what policies are actually "necessary and proper" in limited cases, the extreme dipolar nature of our political system has left a foul taste in the mouths of many Americans. One consequence is a push to check legislative power by "restoring the Constitution." Although we see people walking around with copies of our Nation’s most sacred Document, which was written for the "common man," even if the language is far more sophisticated than what the average person is accustom to reading, it seems many people looking to restore the US Constitution have failed to fully grasp what it actually says. In that spirit, I think it is necessary for us to be a little confrontational and question some firmly held beliefs.
"The Congress shall have the Power -- ."
" -- to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes -- .
Probably the most used and broadest power given to Congress is the Commerce Clause. When agreeing to this provision, the Founding Fathers may not have fully appreciated what this clause might authorize future Congresses to do. After all, the workings of an economy in an era when a horse represented both the most efficient mode of transportation and communication was exponentially simpler than the globalized economy of today that no one has fully mastered. Nonetheless, the Founders did give Congress this power without offering clear limits.
For "free trade" purists, most regulation is seen as government overstepping its boundaries. With events like the Deep Horizon oil spill and the Wall Street bailout sparking rage over weak or nonexistent regulatory oversight, it would seem "necessary and proper" is a foregone conclusion. Looking at the Constitution, it would also appear any claims that regulation violates the Constitution cannot be validated, yet political activists continue to proclaim new regulations are an overreach of government. Not all regulations are effective or necessary, but they generally are not improper.
" -- to establish Post Offices and post Roads -- ."
Since 2008, we have heard quite a bit of rhetoric coming from many members of the various "Tea Party" movements. One demand often shouted with praise is for government to limit its reach to national security and fixing the roads, as the Founders supposedly intended. Clearly, we are behind when it comes to repairing the Nation's roads as between three and four trillions dollars worth of deferred infrastructure maintenance has accumulated with the largest national effort to address this issue being a few hundred billion dollars allocated by the American Recovery and Reinvestment Act. Then again, the only explicit authority Congress actually has to build roads is the Postal Clause. It seems to me a bit of a stretch to claim the Federal government actually has the explicit Constitutional authority to build and maintain massive projects like the Interstate and not other infrastructure projects.
" -- to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States -- ."
Of course, Congress does have the authority to provide for the common Defense and general Welfare of the Country, so the Interstate, being necessary to move troops across the Country during the Cold War in an emergency, does fall under the authority of Congress, but only if Congress's powers are interpreted broadly. To that end, we must consider the wrath provoking issue of Obamacare. While building and maintaining vast highways across our Nation may stretch the meaning of the Postal clause and the General Defence clause, giving citizens a chance to become healthier, live longer, and achieve greater prosperity does support the general welfare of the United States. This is not, however, to say what Congress has legislated is a good idea.
" -- to establish an uniform Rule of Naturalization -- ."
To hit on the controversial Arizona immigration bill passed in 2010, which requires suspected illegal immigrants to prove their legal status, Congress does have the authority and mandate to fix the immigration system. On the other hand, this does not necessarily mean Congress can prevent a State from identifying and arresting illegal immigrates, though an individual State acting autonomously on this issue is probably not a good idea. The Arizona's Law is improper, because it violates the Equal Protection and Due Process clauses of the Fourteenth Amendment when it comes to randomly targeting US citizens who are expected to prove their identity. Unless everyone in Arizona has to prove their citizenship, no one can be forced to do so.
" -- to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries -- ."
While we are on the subject, Congress has obviously neglected another one of its duties as the patent laws of our Nation are, quire frankly, outdated by decades and in need of a serious rewrite. Should we, however, again limit the scope of the General Welfare Clause, the above clause is the only provision that would allow Congress to fund scientific research, but it is self-evident that doing so would also be a stretch of this provision. Certainly, there are individuals who would gladly cut public funding to researchers, yet by far most Americans speak of NASA's accomplishments, as one example, with pride and offer it unwavering support.
Moreover, we should carefully consider whether or not we can validly claim a government action is Constitutional or unconstitutional before defaulting to such a proclamation as doing so limits debate at the expense of better legislation. We must also be ever more cautious when pushing our national leaders to limit their legislative reach on broad subject matter; alternatively, we should target individual solutions to issues that may actually be unconstitutional. We need to deal with specific legislation and work to make that legislation as effective, enforceable, and Constitutional as possible instead of deploying dirty tricks, such as making false claims questioning a provision's Constitutionality, to undermine support for it. This is the only way we as a democratic nation can move forward on the issues.