Part II: Common Sense vs. Power Plays: “Let the end be legitimate.”

Mike Magee

The first words of our Constitution, our Preamble, read: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

I have underlined “promote the general Welfare” – as I will other important words and phrases, because they have been used, from time to time over the past 200 plus years, to argue for or against certain services or proposed obligations or expectations that our citizens might impose upon their government.

Under the Preamble, we find the Articles of Confederation. In the simplest form, they define the architecture of our government – the structure and powers assigned to Congress, the Executive branch, our Judiciary; our system of courts, and the complex dance between states rights and the proposed powers of this new nation declared as the “supreme law” of the land; the subtle recognition that this is indeed a “living document” insofar as a process for making “amendments” or changes to the original document are here defined; and finally the mechanics of how these Founding Fathers will officially launch this new entity as a binding legal venture.

Each of the eight articles themselves contain complex instructions or rules for the game of governing, powers allocated to the various counter-balancing components of this new nation.

Article I for Congress contains 18 sections, and each of these sections has multiple “clauses.” For example, Article I, Section 8 contains 18 clauses, three of which are especially relevant to this discussion.

They are Clause 1 that allows the new national government the power to “lay and collect taxes” absent which any powers granted would have been a toothless tiger.

Clause 3 that provides the power to regulate commerce specifically “among the several states”, which in the end provides a controversial lever to hold out-of-control states in check. This clause has appeared again and again throughout our history in states rights debates.

And finally, Clause 18, known today as the “Necessary and Proper Clause” which allows for Congress to exercise its’ judgment in the years that will follow to exercise its power and control to maintain the Union as a thriving entity.

The Founding Fathers understood that as conditions changed, this living document would need to adjust. As we have already seen, they didn’t have to wait long for the first changes. They were enshrined in what we call “The Bill of Rights.”

Madison also made it clear that these protections applied only to the new national government and did not encumber the various state governments. This battle engaged early and often, with Thomas Jefferson and Alexander Hamilton on opposite sides of the spectrum.

Soon after the 1788 ratification of the U. S. Constitution, Washington’s Secretary of the Treasury, Hamilton, suggested a federal bank to manage debt and currency. Jefferson, then Secretary of State, opposed it for fear of a federal power grab. Regardless, in 1791, Congress created the First Bank of the United States with a 20-year charter.

When the charter ran out in 1811, it wasn’t renewed. But then the War of 1812 intervened – requiring federal dollars – and in 1816 the Second Bank of the United States was created with the Federal government holding 20% of the equity. The divide led to the creation of two political parties – the Federalist Party and the Democratic-Republican Party whose members were committed to undermining the bank.

The battle came to a head when, in 1818, Maryland’s state legislature—levied a $15,000 annual tax on all non-state banks. There was only one – the Second Bank of the United States that was out-of-state at the time. It refused to pay. The suit rose to the Supreme Court with Maryland claiming the right to tax the national government based on their reading of the 10th Amendment claiming state protection against extension of non-enumerated rights to the Federal government.

The landmark 1819 case – McCulloch v. Maryland – defined the scope of the U.S. Congress’s legislative power and how it relates to the powers of American state legislatures. In ruling against Maryland, Chief Justice Marshall argued that:

“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”

According to Marshall, it was the people who ratified the Constitution and thus the people, not the states, who are sovereign.

In making his determination, Marshall had invoked the Necessary and Proper Clause of the Constitution suggesting in so many words that the “end justified the means.” In his view Congress was permitted to seek an objective “so long as its end is within the scope of federal power under the Constitution.”

One such enumerated power is the power “to regulate commerce with foreign nations, and among the several states, and with Indian tribes” in Section 8, Clause 3 of Article 1.

Cornell Law professors explain, “Congress has often used the Commerce Clause to justify exercising legislative power over the activities of states and their citizens, … The Commerce Clause has historically been viewed as both a grant of congressional authority and as a restriction on the regulatory authority of the States…called “The ‘Dormant Commerce Clause’ referring to the prohibition, implicit in the Commerce Clause, against states passing legislation that discriminates against or excessively burdens interstate commerce.”

What exactly does this powerful word – “commerce” – even mean? We really don’t know for sure since the Constitution never explicitly defines the word.

Again turning to the scholars, they say, “Some argue that it refers simply to trade or exchange, while others claim that the Framers of the Constitution intended to describe more broadly commercial and social intercourse between citizens of different states.”

What experts do agree on is “the interpretation of ‘commerce’ affects the appropriate dividing line between federal and state power.”

What does all this have to do with health care? You’d be surprised. In Part III, we review a landmark case our current conservative Justices seem determined to undermine – Griswold v. Connecticut.

Part III (continued).