Wyatt Troia has a column in the Crimson arguing that the Constitution, as it stands, does not permit many “liberal schemes” (including the health insurance mandate) and that, if liberals want to make their schemes constitutional, they need to pass constitutional amendments.
Wyatt correctly notes that the enumerated Congressional powers in Article 1, Section 8, do not include workplace diversity requirements and cap-and-trade. I would like to know how far Wyatt wants to go with this line of argument. The following questions are posed with all earnestness, and I hope Wyatt will respond.
Section 8 gives Congress power to “establish Post Offices and Post Roads.” Is Congress allowed to provide for airmail? Do we need a constitutional amendment permitting Congress to provide for airmail?
Section 8 gives Congress power to raise an army and a navy. What about the air force? Do we need a constitutional amendment for that, too?
Lest you think all my examples are airplane-related, Section 8 also gives Congress power to “coin Money.” May Congress also print paper money, or do we need a constitutional amendment for that?
I also wonder what Wyatt thinks of broader constitutional phrases.
The First Amendment, for instance, prohibits Congressional restrictions on the freedom of speech. But the framers and ratifiers were probably thinking of pamphleteers. Do we need a constitutional amendment to extend freedom of speech to the Internet?
The Fourth Amendment says, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The framers and ratifiers surely never envisioned wiretaps. Do we need a constitutional amendment declaring that a wiretap is a search?
The Eighth Amendment prohibits “cruel and unusual punishment.” Do we need a constitutional amendment clarifying that, these days, “cruel and unusual” means something different than it did in 1791?
I imagine, based on his column, Wyatt will say that amendments are needed for each and every change to the Constitution as it was written and ratified.
In my view, though, the Constitution enshrines principles and goals, not only means. The framers wanted Congress to provide mail delivery and the armed forces. So they prescribed the means that were known to them. It is no perversion of the Constitution for Congress to raise an air force.
If that’s true, one should apply the same sort of reasoning to other parts of the Constitution. And I don’t think Wyatt disagrees that the Constitution must be updated. He takes the view that the only legitimate way to update it is through amendments. But that may not be true if the Constitution is seen as a document espousing principles and goals, not just certain means.