On the Constitution, Beware the Word “Clearly”
Hat tip: Tenth Amendment Center
by Rob Natelson
On January 20, the Los Angeles Times ran an op-ed arguing that national health care mandates were constitutional. The article claimed this was true both under modern Supreme Court interpretations and under the Constitution’s original meaning.
I do not share the writer’s confidence that national health care mandates are constitutional even under the modern Supreme Court’s altered version of the Constitution — but I recognize that legal scholars differ on this question. However, the claim that the Founding Fathers would have thought the Constitution allows Congress to impose health care mandates is little short of absurd.
What really floored me was seeing that this claim was advanced by Akhil Reed Amar, a constitutional scholar I very much admire. Apparently, Professor Amar has been seriously misreading the historical record.
I know that record well: Researching and writing about it has taken much of my professional time for many years. Here are some of Professor Amar’s points, and my rejoinders:
Amar: “It’s true that the Constitution grants Congress authority to legislate only in the areas enumerated in the document itself. Other matters are left to the states under the 10th Amendment. But if enumerated power does exist, the 10th Amendment objection disappears.”
Natelson: The Tenth Amendment (and even more so the Ninth) was adopted to signal that no enumerated power should be stretched too much. Otherwise, federalism would be subverted. An important legal rule in the Founding Era (as today) is that documents should be construed to avoid a situation in which much of the language becomes useless surplusage. Stretching any enumerated power too far would render useless both the other enumerated powers and the Ninth and Tenth Amendments.
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