Today, a "reporter" from CNSNews.Com, a conservative blog, asked Nancy Pelosi to point out language in the Constitution that specifically authorizes Congress to mandate that individuals purchase health insurance. Pelosi dismissed the question by responding, "Are you serious?" Pelosi's response was absolutely warranted.
Conservatives have tried unsuccessfully to argue that the Constitution does not permit various aspects of Democratic healthcare reform. Liberal and conservative Constitutional Law scholars have rejected these arguments, but people continue to assert them.
I am particularly perplexed/annoyed by the conservative assumption that unless explicit text directly authorizes a legislative enactment, then Congress necessarily lacks the power to pass the law. This is a extraordinarily foolish and unsupportable view of the Constitution. The Constitution is written in general terms; only a few provisions define individual rights and governmental powers with precision. To make this point more concrete, I quote from a previous essay on the subject:
It is absolutely absurd to ask whether the constitution specifically or explicitly allows Congress to regulate or reform healthcare. The Constitution speaks broadly and ambiguously. Only a few provisions are specific and beyond dispute (like the age requirement for presidents and members of Congress).In addition to the above observations, a method of constitutional interpretation that demands specific and unambiguous textual support would mean that the following federal rights or powers could not exist: the right to pray during school or to be free of racial quotas in college admissions; and the power to ban child pornography on the Internet; "drill drill drill" for oil in Alaska; force air passengers to submit to safety screening; and to criminalize acts of terrorism. The Constitution does not specifically mention any of these things.
The Constitution does not specifically or explicitly authorize the creation of the Air Force or Medicare, nor does it discuss the federal prosecution of crack cocaine possession. And the "Framers" certainly did not specifically contemplate airplanes, prescription drug and hospital plans for seniors, or crack cocaine because these things were not realities when they wrote the Constitution.
If conservatives only believe Congress can regulate things that are explicitly mentioned in the actual text of the Constitution, then they should essentially advocate the abolition of the federal government. At a minimum, they should seek the immediate repeal of laws banning partial-birth abortion and kidnapping; the Constitution does not mention children or abortion.
Also, as many students of high school and college civics classes know, Article I of the Constitution contains the "necessary and proper" clause, which endows Congress with unenumerated powers that are needed to carry out its expressly delegated powers. In the very first case interpreting this provision (McCulloch v. Maryland), the Supreme Court rejected the narrow interpretation offered by anti-federalists.
Many of today's conservatives pretend that the Necessary and Proper Clause does not exist or that courts can only interpret it conservatively. Nothing in the history of the clause or the Court's interpretation of it compels an exclusively narrow interpretation.
I am happy to debate the meaning of the Constitution -- but, please: let's retire ridiculous and unserious arguments.
UPDATE: Hot Air chimes in, and I respond: Very Hot Air From "Hot Air" -- Regarding Healthcare Reform.