Re: Townhall.com – 2/11/2009 – “The Hell With Our Constitution” – Walter E Williams

Williams says the Constitution has “no specific authority conveyed for the government to spend money on global-warming research”. Global-warming research has the same constitutional justification that the research of the National Weather Service has. Lots of government’s activities are not specifically (by name) authorized in the Constitution but are implied by being “necessary and proper” to execution of one or more of the Constitution’s enumerated powers. The Constitution does not specifically authorize either military weapon research or an air force, but the necessity keeping our weapons up to date, including the adoption of air based weapons and the forces that use them in supporting the objectives of the armed forces (which consisted of only land and naval forces at the time of the Constitution) is undeniable. So too is the necessity of understanding climate and weather --- these are “necessary and proper” understandings in the regulation of interstate and international commerce. My reasoning follows the Court’s reasoning in McCulloch vs Maryland (1819) which held that the Constitution recognized Congress’ power to take action to implement its enumerated powers.

Williams cites Higgs that “federal courts had respect for the Constitution as late as the 1930s”. But as early as 1824 in Gibbons vs Ogden, Chief Justice John Marshall wrote “[regulatory] power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution”. In Burrows-Giles Lithographic Co vs Sarony (1884), the Court held that copyright protection could be extended to photographs by interpreting “author” as originator rather than as writer. These, and lots of pre-Roosevelt Supreme Court decisions may be construed by Williams and others as the unconstitutional actions of such infamous judicial activists as John Marshall, but to blame Roosevelt for the long history of Court precedents allowing Congress to react to situations unimagined at the time the Constitution was written is just plain absurd.

Whether “global-warming research, urban mass transit, food stamps, unemployment insurance, Medicaid, or countless other items in the stimulus package” are Constitutionally reasonable items for inclusion in a stimulus package is dependent on only two things: (1) Is there an enumerated power for Congress related to these items, the answer to each of the above items being yes, the Commerce clause; and (2) Are these items “necessary and proper” in carrying out Congress’ function, and again the answer in my opinion is yes. But there is a third test we should all consider, and that is whether these items ought to be included in the stimulus package even if Congress has the right to do so. To this, I’d answer: no to global-warming research which would support Commerce’s constitutional duties but is neither necessary nor proper in dealing with our current economic problems; yes for urban mass transportation which would be constitutional under the Court’s pre1900 interpretation of interstate as being part of an transportation network including more than one state and because it is a good source of jobs to rekindle the economy; yes for food stamps and unemployment insurance which are long-standing and pre-existing programs and can easily be targeted to those displaced from jobs due to the current economy; and no for Medicaid which again is a pre-existing program but bears little relation to or effect on the current economic crisis.

It is my personal belief that arguments like Williams’ are reflexive applications of the wrong principle at the wrong time --- sort of like: I don’t like this and I don’t want this but I don’t have the votes to defeat it, therefore it must be unconstitutional.

Some of the provisions of the stimulus package are unnecessary and perhaps counterproductive to fighting our current economic crisis. But they just aren’t unconstitutional!