A Bitter Argument

by Joseph Sobran

This morning I got into an argument with my old friend Marv, a retired army officer. He’s a conservative Republican, and we agree on most subjects, and we are both mild-mannered Midwesterners.

But today, at the coffee urn at McDonald’s, we found ourselves hurling hot, wounding words at each other – along the lines of "Well, I don’t know about that, Marv," and "I beg to differ with you, Joe," and even "Are you really sure about that?"

But once you’ve said them, you can’t take them back. They may fester for years, and the friendship is never quite what it was before. You may secretly regret every coarse expression – every menacing "heck" and "doggone" (a Midwesterner resorts to such language when he wants to intimidate the other guy) – but it’s too late. You’ve already drawn blood without making your point.

It’s sometimes hard for people from New York or Los Angeles to tell when Midwesterners are upset. One way is when they start throwing the word "darn" around with abandon. When Marv says "darn," I know it’s time to back off. A sensitive nerve has been struck.

The nice thing about writing a column is that you can collect your thoughts and say the things you couldn’t think of in time during the heat of argument. So here goes.

Marv and I were disagreeing about the U.S. Constitution. He was arguing that it was written so long ago that it can’t be applied literally to today’s events. Modern inventions alone have made it somewhat obsolete.

For example, he said, the Constitution authorizes Congress to raise armies and navies. But what about an air force?

Well, I retorted (too furious to think straight), there are several ways to approach it. You could argue that an air force is just a flying army, and is already covered by the Constitution. Or, if that one doesn’t fly (no pun intended, of course – Midwesterners don’t make puns), you can just amend the Constitution.

In my rage I’d overlooked the real point. Of course there are bound to be gray areas. But most areas aren’t gray. An old Midwestern adage teaches us that "hard cases make bad law."

Recently Congress has been debating legislation on cloning, farm subsidies, patients’ rights, campaign spending, and other matters. I’ve searched the news accounts in vain for a single congressman to raise the basic question, the first question that should be asked about any proposed federal law: "Where does the Constitution say we can do this?"

In other words, every federal law has to be authorized under a clause delegating a power to the federal government. If there is no applicable clause, the proposed law is unconstitutional.

Okay, so there are going to be difficulties in applying these clauses. Do veterans’ pensions fall under the power to raise armies and navies? We can debate such things. But we have to start with the principle that the necessary power, however broadly or narrowly it may be construed, must be listed in the Constitution. Whatever isn’t authorized is forbidden.

And the point is that this principle no longer comes up at all. Congress acts, day in, day out, on the presumption that it can pass any law it pleases, regardless of whether it has constitutional permission. And no matter how lacking in authorization the law may be, Congress can count on three things: (1) the president won’t veto it on those grounds; (2) the Supreme Court won’t strike it down; and (3) the "watchdog" press won’t notice that it’s unconstitutional.

That last point is especially important. The press doesn’t really tell the public the full story, because it doesn’t know the full story. It knows very little history, especially constitutional history. So it can’t report on pending legislation in terms of the vital question of whether a proposed law is grounded in the Constitution which Congress is supposed to be upholding. Like Congress itself, the press assumes that Congress’s power is more or less unlimited.

But who doesn’t assume that nowadays? To most Americans, the very idea of limited government now seems about as quaint as the divine right of kings. They may know all about the latest refinements in cars and computers, but they don’t know their own political heritage. It’s a real pity.

I think Marv, in his calmer moments, would agree with me on that.

August 16, 2001