If there’s one thing that I can agree with Akhil Reed Amar on, it’s this:
the Constitution grants Congress authority to legislate only in the areas enumerated in the document itself.
But after reading his recent op-ed in the LA Times arguing that the Constitution somehow authorizes a national healthcare mandate, I can’t find much else to agree with. His arguments cover the spectrum of all the most prominent arguments in support of more central control.
Professor Rob Natelson’s featured article on the subject, “Beware the Word Clearly” takes Amar to task, line by line, on his inaccurate positions, which are often so off-base that it appears to me that the op-ed was written by an interested politician instead of a Constitutional Scholar.
But, In case Natelson’s arguments weren’t compelling enough for you, I figured it would be good to look to a few other experts on the Constitution for their opinion too. Especially since Amar made his case as if it were somehow indisputable.
Here’s what I was able to dig up.
1. Professor Kevin Gutzman is a Constitutional scholar, an expert in the Middle Period of American history, 1760-1877, and the New York Times bestselling author of The Politically Incorrect Guide to the Constitution
“By Amar’s logic, a federal entitlement to annual vacations would be within Congress’s power under the Interstate Commerce Clause: it would affect interstate commerce, it is beyond some people’s reach because of lack of resources, and it would be funded via an apparently rudderless taxing power. Of course, neither his reading of the Commerce Clause (which was rejected by the Supreme Court until 1937) nor his understanding of the Taxing Clause (which was rejected by the Supreme Court until the 20th century, or else there would have been no 16th Amendment) has anything much to do with the original understanding. Professor Amar would not be a professor of constitutional law at Yale Law School if he did not advocate virtually unlimited power in the formerly Federal Government.”
2. Professor Kurt Lash is the James P. Bradley Chair of Constitutional Law at Loyola Law School, who’s scholarly work has appears in some of the top law reviews in the United States, including Stanford Law Review, Virginia Law Review, Georgetown Law Journal, Northwestern Law Review, and Texas Law Review.
As for this [comment by Amar]:
“After the Civil War, Americans amended the Constitution to give Congress another explicit authority relevant in the healthcare debate: Section 5 of the 14th Amendment charges Congress with protecting basic human rights. Healthcare is such a right — or at least Congress is constitutionally allowed to decide it is. Those who disagree should simply vote for different congressional members rather than hiding behind bad constitutional arguments that do violence to the text and original intent of the 14th Amendment.”
Well, I love Akhil like a brother, but this assertion is unsupported by either the text or history behind the Fourteenth Amendment. I imagine Akhil would claim that the Privileges or Immunities Clause nationalized all of the state common law rights listed by Justice Bushrod Washington in Corfield v. Coryell–Akhil would translate this to all “basic human rights.” But not only has he grafted a modern concept on a 19th century decision of the lower federal courts, he is wrong that the members of the Thirty-Ninth Congress would have supported federal power to regulate all “basic human rights.” The very term “civil rights” was removed from the Civil Rights Act of 1866 due to concerns it would authorize federal control of matters belonging under sate control. John Bingham, the drafter of Section One’s privileges and immunities clause, refused to support the civil rights act due to concerns about federal interference with matters reserved to the states under the Tenth Amendment.
Professor Lash also recommended that I check in with Randy Barnett, who along with Rob Natelson, has done some of the most extensive research on the origins and meaning of the Commerce Clause.
3. Professor Randy E. Barnett is the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center, where he teaches constitutional law and contracts.
Unfortunately, Barnett was not available for comment, but one only needs to read his seminal work, The Original Meaning of the Commerce Clause, to get a better understanding. Here’s how he sums up the commerce power:
“Congress has power to specify rules to govern the manner by which people may exchange or trade goods from one state to another, to remove obstructions to domestic trade erected by states, and to both regulate and restrict the flow of goods to and from other nations (and the Indian tribes) for the purpose of promoting the domestic economy and foreign trade.”
With the added weight of professors Gutzman, Lash, and Barnett, I find it hard to disagree with Natelson’s statement that “The claim that the Founding Fathers would have thought the Constitution allows Congress to impose health care mandates is little short of absurd.”
Michael Boldin is the founder of the Tenth Amendment Center
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