Right or Wrong? A Review of Constitution 101 | Charles E. Rice | October 6, 2009
Right or Wrong? A Review of Constitution 101 | Charles E. Rice | October 6, 2009
http://ignatiusinsight.com/features2009/rice_rightorwrong_oct09.asp
The health
care debate makes sense only in the context of the transformation of our
constitutional system. So let's do a quick review of Constitution 101.
The
Constitution of the United States was the first creation in history of a
national government with only limited, delegated powers. Magna Carta, the
English Bill of Rights and other documents involved only limitations on the
otherwise unlimited power of government. The Articles of Confederation, under
which the United States functioned from 1781 until the Constitution took effect
in 1789, created essentially a confederation of semi-autonomous states. The
Constitution created a real government of the nation, but a government limited
to specified powers.
Under the
Constitution, neither Congress, nor the Executive nor the Judiciary, had
unlimited jurisdiction. Article I, Sec. 8, specified that "The Congress shall
have Power" to legislate only on specified subjects. Incidentally, no power was
granted to Congress to regulate health care as such. Nor was Congress granted a
power over education, apart from special situations such as land-grant schools.
The states retained all powers not delegated by the Constitution.
That
constitutional system has gone the way of the bronze axe and the spinning
wheel. One transformative event was the Supreme Court's definition in U.S.
v. Butler (1936), that Congress' power to tax and spend for the "general welfare of the
United States" was not limited to spending on the subjects on which Article I,
Section 8, authorized Congress to legislate. But Congress' spending had to be
for the "general welfare." Congress, however, has wide latitude to determine
what is the "general welfare." While the Court said that the spending power was
not a general power to regulate for public purposes, the Court has held that
Congress can impose conditions on the subsidies it grants (South Dakota v.
Dole [1987]). That power to regulate recipients of federal money is, to put it mildly, very
broad, as General Motors, banks and other recipients of bailout money have
learned. And as all of us will learn when the likely terms of Obamacare go into
effect in 2013 (after Obama's reelection). There is no such thing as a free lunch.
If you take the money, you take the controls.
Many
factors contributed over the years to the centralization of power in
Washington. But in the past eight months, Congress' use of its spending power,
and President Obama's unprecedented executive edicts, have so expanded federal
power that it amounts to an extra-constitutional coup. The federal takeover of
health care, one-sixth of the economy, is essential to the success of that
coup. It would open the door to federal controls not only on what medical care
you can receive but potentially also on what you eat, how much you weigh, your
exercise regime, the level of heat and noise in your home and whatever else
might affect your health and therefore the cost of your health care to the
taxpayers. The framers of the Constitution would be surprised, to say the
least.
Health
care, however, is not the only centralizing initiative in Congress. Another
example is H.R. 3221, the Student Aid and Fiscal Responsibility Act of 2009
(SAFRA). It advanced under the radar while everyone was talking about health
care. SAFRA reduces the financial options of students seeking higher education.
It passed the House and now is in the Senate Health and Education Committee.
The
federal government now subsidizes student loans through the Federal Family
Education Loan program (FFEL), which offers subsidized loans to students from
private lenders at low interest rates, and through the Direct Loan program
(DL), in which the Department of Education is the lender and the funds come from
the U.S. Treasury. The Higher Education Act sets the terms and conditions on
FFEL and DL loans. FFEL was created in 1966. Over 2,000 lenders participate in
FFEL, serving 4,400 institutions, with $70 billion in loans this year. The DL
program, established in 1993, serves 1,700 institutions, with $22 billion in
loans this year.
SAFRA
would terminate FFEL and shift all federal student loans, including Federal
Direct Perkins Loans, to the DL program. SAFRA would also create nine new
programs and otherwise increase federal involvement in early education, school
construction, etc. On September 10th, 40 current and former
presidents of state, regional and national financial aid associations alerted
House and Senate committees to problems involved in implementing SAFRA as early
as the 2010-11 school year.
Beyond
those implementation issues, SAFRA would be a huge expansion of the DL program.
It would dismantle a system that has worked fairly well for four decades. It
would eliminate private sector jobs as well as consumer choice, competition
among lenders, and existing programs to reduce defaults. For non-wealthy high
school seniors, SAFRA would make their potential for federal student loans
depend entirely on approval by government bureaucrats or contractors retained
by government. One concern is that the predictably voluminous SAFRA
regulations could provide openings for covert political or other illicit
discrimination against borrowers or recipient schools. A more obvious concern
is that "Congress," in the words of Representative Paul C. Broun (R-GA), "has
no business putting taxpayers on the hook for defaulted student loans when the
private sector would gladly bear this risk."
The
objections to federal takeovers of the private sector do not arise from constitutional
archeologism. Those takeovers violate the social principle of subsidiarity:
"Just as it is wrong to withdraw from the individual and commit to the
community at large what private enterprise and industry can accomplish, so too,
it is an injustice, a grave evil, and a disturbance of right order for a larger
and higher organization to arrogate to itself functions which can be performed
efficiently by smaller and lower bodies. This is a fundamental principle of
social philosophy, unshaken and unchangeable, and it retains its full truth
today. ... The true aim of all social activity should be to help individual
members of the social body, but never to destroy or absorb them" (Pius XI,
"Quadragesimo Anno" no. 79).
"Subsidiarity," said Benedict XVI, "is the most effective antidote against any form of
all-encompassing welfare state" ("Love in Truth," no. 57).
When they
elected Notre Dame's most obsequiously honored alumnus, the American people
voted for both hope and change. They are, indeed, getting one of those. Congressman
Broun asked the question about the change that, so far, has no answer: "When
will the massive spending and Federal takeover end?"
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Dr. Charles E. Rice (E-mail: Charles.E.Rice.1@nd.edu)
is Professor Emeritus of Notre Dame Law School. His areas of specialization are
constitutional law and jurisprudence. He currently teaches "Law and Morality"
at Notre Dame. His books include 50 Questions on the Natural Law; Freedom of
Association; The Supreme Court and Public Prayer, The Vanishing Right to Live;
Authority and Rebellion; Beyond Abortion: The Theory and Practice of the
Secular State; No Exception: A Pro-Life Imperative; and The Winning Side:
Questions on Living the Culture of Life. His latest books are Where Did I Come? Where
Am I Going? How Do I Get There?, (2nd ed.) co-authored with Dr. Theresa Farnan,
and What Happened to Notre Dame?, both published by St. Augustine's Press in
2009.
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