Constitutional FAQ

This column originally appeared in the Williston Observer on October 1, 2009.

Constitutional FAQ

One of the most popular pages on my U.S. Constitution web site is the FAQ. As you may already know, "FAQ" stands for "Frequently Asked Questions." The concept is to place such questions in a central location so that as the same questions arise again and again, the answers can be quickly found.

Despite the FAQ, I still get a lot of the same frequently asked questions, especially, it seems, from students who have come to expect that answers should fall into their laps, rather than come to them through a bit of research. I find these to be "teachable moments," and often refer these students to specific sections of the Constitution, writing "If you read this section, you'll find your answer."

The past year has brought about a whole new set of questions that I had not seen before — whether they will attain "Frequently Asked" status or not, only time will tell.

One perfectly reasonable question often goes like this: "I've searched through the Constitution and cannot find the words 'health care' anywhere. What gives Congress the right to enact health care legislation at all?"

Parenthetically, I usually tell such questioners that the Congress doesn't have "rights" to do anything. It does, however, have the "power" to do things. The discussion of rights versus powers is sometimes an overwhelmingly philosophical one, but the distinction is important.

That detail aside, the answer to many questions of this type have the same answer: Article 1, Section 8 is a list of the powers of Congress. Some of them are quite specific and limited (for example, the power to coin money or establish post offices).

Others, however, are succinct in their phrasing but expansive in their practical effects. Clause 1 is one of the most expansive, granting Congress the power to collect taxes in order to, among other things, provide for the "general Welfare" of the United States.

If health care cannot be called a component of the general welfare of the people, nothing can be.

Clause 18 completes the picture. This clause grants Congress the power to make all laws "necessary and proper" to carrying out the powers listed previously. Whether the Framers of the Constitution understood what they had done when they wrote clauses 1 and 18 is a subject of some debate in historical and political science circles, but for all practical purposes the debate is settled.

When the Bush and Obama administrations were bailing out troubled banks, a common question went like this: "Under what authority does the government gain control of private business by giving or loaning them taxpayer money?"

The answer is another expansive clause of Article 1, Section 8; Clause 3, the interstate commerce clause. Under this clause, paired with Clause 18 again, the Congress has the power to enter into arrangements with business such as it did at the beginning of this year. I hasten to note that the government was not looking for an actual take-over of the affected businesses, but some degree of control was thought necessary (and proper, if you'll forgive the constitutional pun) to bring banks under control. This would give Congress and government agencies time to come up with new regulations to prevent such crises in the future, once the direct government influence of the businesses was removed.

Finally, this question came to me recently: "How does the Constitution say the people can kick out the Congress or the President?"

Questions such as these bemuse me, and it happens quite often. A plain reading of the Constitution reveals that there is nothing like a "recall clause", but the questioner assumes it must be there.

In my response, I told the questioner that there is no such clause in the Constitution, and that it was actually a good thing that it's not there. Recall efforts are disruptive and take attention away from the work that the Congress or the President should be doing. If a member of Congress or the President acts in an egregious manner, there are ways of removing them from office (to wit, impeachment). Short of that extreme and rare measure, the people are free to exercise their rights of free speech, of petition, and, ultimately, the power of the vote.