There are 18 statements regarding the powers granted to Congress, and by extension to the federal government, in Article 1 section 8 of the Constitution. (Some of those 18 statements contain multiple assignments of power embedded in one paragraph, for some unknown editorial slight-of-hand!) The reality is that these powers are specific statements regarding a general responsibility whose details are as broad and varying as one chooses to read into them. The truth is, the powers of the government are not in the narrowness of the words, with all the many limitations of language that are inherent in the use of words. The true powers are in the spirit and interpretation of the Constitution in response to the needs of the people as they emerge. That is what is so maddening about the nonsensical “strict constructionist versus living constitution” debate that permeates many constitutional discussions. That is why we have a Congress to write specific laws to effect those broadly defined powers, an executive branch to create rules and mechanisms for translating those laws into everyday realities, and courts to determine whether the end result is still in reasonable and consistent conformity with the original constitutional guidelines. Those 18 statements are:
(#1) “The Congress shall have the Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.” So Congress defines and collects taxes and tariffs, and is expected to pay the debts of the government. (Sounds reasonable today, but obligating the federal government to paying the country’s debts was a big new commitment in 1787.) “Providing for the common Defence” means keeping us as a group reasonably safe from potential harm. That means not only in the obvious times of war with others, but also from those who today would harm us in other equally destructive ways. Which is why we now have such things as the FBI and other federal law enforcement agencies, the Food and Drug Administration (FDA), the Environmental Protection Agency (EPA), and the Center for Disease Control CDC) and the OSHA workplace safety act. These are agencies I have no interest in eliminating (though their processes used should always be subject to oversight discussion) because unscrupulous people and our complex retail systems today have the capacity to commit great individual as well as widespread harm to the citizenry. And as an individual I have minimal defenses against such mass attacks to my safety as can now be perpetrated. But it is that “general Welfare” thing, and the possible governmental roles and responsibilities that it enables, that keeps our discussions lively – an eight-lane expressway through the narrow countryside of the “limited role” viewpoint. (More about this later.)
(#2) “To borrow money on the credit of the United States.” Obviously we do that well, if not to excess, precipitating the “raising the debt limit” fiasco of this past August. (#3) “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” So our commerce Department seeks out international trade agreements, with mixed success; our Interior Department has made treaties and overseen the Indian tribes and their reservations with continuing dismal and immoral failures; and regulating trade “among the several states” – the interstate commerce clause – opens quite widely a legal door to be involved in all business crossing state lines, which includes most of today’s business environment.
(#4) “To establish an uniform Rule of naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States.” Bankruptcy laws are fairly clear, in place, and without major controversy. But in this age of illegal immigration, rules governing immigration and naturalization are rife with controversy. Especially as some states try to pass their own laws against illegal immigrants, and Congress cannot come up with a reasonable common sense plan to deal with the 12 million illegals already in the country. But it is clearly Congress’ job, not the states, and Congress is abrogating that responsibility on all fronts.
(#5) “To coin money, regulate the Value thereof, and of foreign coin, and fix the Standards of Weights and Measures.” Plus (#6) “To provide for the Punishment of counterfeiting the Securities and current Coin of the United States.” No one seems to debate much about who should be coining and protecting the integrity of our money, though over the years it has continually precipitated a number of arguments about central banks and the Federal Reserve System. We do not think much about standardized weights and measures anymore, but it was a hot topic about business honesty in 1787. An attempt to switch to the metric system 20+ years ago was an unfortunate failure; coming up with “unit cost” posting in the grocery store was a helpful step forward to promote honest price information by requiring “truth in bulk packaging.”
(#7) “To establish Post Offices and Post Roads.” Ben Franklin did such a good job creating the first postal system in America, and an effective communication infrastructure was deemed so important to the successful running of the country, that a postal service and the roads by which to deliver the mail was written in as a Constitutional responsibility. As much as some business people and politicians may complain about our post office, eliminating it is not a legal option. And the Fedex / UPS private business model is not an alternative; who thinks these companies have any interest whatsoever in delivering my daily mail up a back dirt road in the remote mountains of North Carolina? And UPS already now pays the US Postal Service to deliver their packages to such remote locations!
(#8) “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The need, the right, to copyright and patent protection was clearly understood by these educated framers of our Constitution in order to advance the progress and learning of society. Protecting those rights from international piracy is critical. Trampling on Internet freedom by arbitrarily shutting down web sites by government prerogative as is currently proposed is a well-intended but really lousy idea. (In the interest of full disclosure, I am saying this as a copyright owner.)
(#9) “To constitute Tribunals inferior to the supreme Court.” We have an extensive multi-layered system of federal judicial review in place. What we do not have is a Senate that exercises its responsibility to approve/disapprove presidential appointments to that judiciary on a timely basis (as well as with executive department heads) due to political infighting and personal ego, thereby crippling these same Tribunals. One of the numerous current disgraces of Congress.
(#10) “To define and punish Piracies and Felonies committed on the high seas, and Offenses against the Laws of Nations.” Even in this day, piracy still exists (Thank you once again Seal Team 6!). And Offenses against the Laws of Nations still occur (terrorists attack; dictators still flourish; people revolutions, and sometimes wars, are still needed, however messy and confused they may be in the short term).
(End Part 1 of a 2-part posting.)