The Jobs of Government - Part 2

In Part 1 of this 2-part blog, we reminded ourselves of the first ten Constitutional statements of the powers invested in Congress, and thereby the Federal Government.  It was towards an endpoint of better grounding ourselves in this election season to answer what should/should not be government’s roles and responsibilities.  In this blog installment, let us finish that list. 

(#11) “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.”  (#12) “To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer term than two years.”  (#13) “To provide and maintain a Navy.”  (#14) “To make Rules for the Government and Regulation of the land and naval forces.”  These statements are all about the government’s war powers.  We did pretty well in our history with leaving to Congress the decision to go to war, and to the President to prosecute those wars.  It all got confused after World War II.  Since then, virtually none of our military engagements have been pursued based upon a formal Declaration of War from Congress.  Instead, they have been unilateral actions by a president or a Congressional resolution for logistical support (Korea) or a mandate for defensive action (Viet Nam) with the exception of the 2nd Iraqi war – and we see how well that turned out!

The post-Viet Nam War Powers Act of 1973 gave some balance to this question with a flexible form for a president to act quickly on our behalf, but for Congress to decide on any long-term commitment.  But most decisions on long-term commitment have been reduced to patriotism demagoguery (e.g. “who is the true patriotic American?”) or to legislative budget tricks (“who would not agree to support our men and women in uniform?”).  All in all, in the past 60 years these congressional powers have not been working out too well, separate from any military outcomes themselves.

(#15) “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”  (#16) “To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.”  “Militia” is what we now call our National Guard, organized by and within each state and commanded by each governor respectively.  These are the folks that often show up in times of disaster to help with local relief and rescue operations.  But based upon statement #15, these were also the troops called into Federal service to enforce civil rights and integration laws in the 1950s/1960s (Eisenhower at Little Rock High School; Kennedy at Ole Miss University) rather than using federal troops over “civilian” issues.  Even so, Federal troops were used frequently during the labor strikes and economic unrest from 1875-1932, and the state militia was used by various governors over similar instances – always in support of the established corporate owners and sitting governments calling these instances “insurrections.”  In the late 1960s/early 1970s Viet Nam protest years, militia (Kent State) or federal troops (Capitol protests) were often called into service to put down street demonstrations or outbreaks of urban violence.  In our Iraq and Afghanistan engagements, the National Guard has provided a major portion of our military strength for long years – not exactly what was originally intended for their role.  (A significant portion of our Revolutionary Army was made up of independent local militia groups, sometimes operating alongside Washington’s army but also working independently in the local countryside.)

(#17) “To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise such Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.”  Congress is the landlord over Washington D.C. as a sort of “neutral zone” independent of any state (similar to the land in New York City where the United Nations sits).  It also has superseding jurisdiction over property owned by the Federal government across the country – post offices, federal courthouses, national parks/forests, military bases, etc.  This ownership issue was the basis for the first military act of the Civil War – the state of South Carolina firing on the Federal base at Fort Sumter to prevent its resupplying.  Possession and separate jurisdiction are not always easy coexisting issues. 

(#18) “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”  This is the big escape clause.  It works in combination with the “provide for the common Defence and general Welfare” in the 1^st statement, and the “regulate Commerce … among the several States” in the 3^rd statement.  It is the clause that switches the Constitution from an objective to a subjective statement, from a literal to an interpretive criteria, from a static document to a fluid, evolving one.

All of these Constitutional powers leave the “how” unspecified and simply provide a framework for decision specificity.  The majority of our commerce in now interstate, if not international.  I live in North Carolina, have medical insurance through my state retirement program in Massachusetts, which is delivered by CVS headquartered in Woonsocket, RI and UniCare headquartered in Indianapolis, IN.  Yet, for example, Obamacare opponents claim that Congress had no right to pass legislation prescribing individual health care, even under the interstate commerce clause.  Only a potentially ideological and politicized Supreme Court could strike the law down on any supposed “constitutional grounds” – and well they might, given their track record this past decade.

With “provide for the … General Welfare,” any number of good and bad ideas can be argued to fit under that umbrella, and have been.  And your ideas for “general welfare” are unlikely to be the same as mine.  So resolving this question can never truly be an act of the Court, but must always be a Congressional act reflecting the current mood of the people (or the mood of Congress!).  Which leads us to statement #18 – “make all Laws necessary and proper to execute these Powers.”  “All” is a lot of laws.  “Necessary” can reflect many different potential ways to get to a particular end.  “Proper” reflects a perspective of our values and experiences – which is a perspective unique to each of our individual backgrounds.  What is “permissible” for government’s role in our society could fill a suggestion box the size of a football stadium.

We can, should, and will have never-ending debates about what our Federal government’s role should be, either in general or as regards a particular issue seeking resolution.  What we need to stop doing is pretending that our Constitution says things it actually does not, that it prohibits things it actually does not, that there is any such thing as a “strict constructionist” regarding an unrestricted meaning, or that “activist judges” are simply ones who interpret a law differently than we would.  Our Constitution is a framework, a guideline, not a narrow law.  It is up to us to determine, case by case, in our current time, how it can guide us to the best possible decisions.  Just as with our important spiritual texts, the realization of its spirit is not in the words, but is in our hands.