The health care debate has exposed the scandalous constitutional illiteracy of our Congress.
 
But perhaps it should not be surprising that lawmakers who vote for legislation that they haven’t read would swear an oath to support a Constitution that they haven’t read.
 
The Democratic leadership apparently views the Constitution as a grab-bag of provisions that permit the national government to do whatever it wants. To explain where Congress gets its power to force Americans to purchase health insurance, or otherwise regulate this industry, they have resorted to the taxing power, the interstate commerce power, and now, the military power.
 
Democratic Senator Jack Reed told CNSNews.com that “it is not unusual that the Congress has required individuals to do things, like sign up for the draft… which I don’t think are explicitly contained [in the Constitution].”
 
This is an astonishing non-sequitur. The Constitution gives Congress the power “to raise and support armies.” Conscription is a necessary and proper means to achieve that end. But there is no enumerated power concerning health care toward which compulsory insurance could be said to be a means.
 
The same perversity can be seen in the National Capitol Visitors Center. This displays a list of national “aspirations,” with a reference to the text of the Constitution that is supposed to empower Congress. One is called “Exploration”—the promotion of education, the arts, and scientific research – and refers to the patents-and-copyrights clause.
 
The clause actually gives Congress power “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.” This is the only one of the enumerated powers that specifically limits Congress in the choice of means that it can use to achieve the end.
 
Congress is not limited, in contrast, in its “power to raise and support armies” by, for example, asking for volunteers.
 
Senator Reed’s analogy of health insurance and the draft is an apt illustration of the tendency of liberals to resort to military analogies to justify federal power. Once a government compels citizens to risk their lives, it becomes that much easier to limit their liberty and property. This is why war has always posed the greatest challenge to limited, constitutional government.
 
The founders certainly did want to establish a stronger central government, and a stronger president, to strengthen America in the world of sovereign states. It gives the government particular powers to deal with war and rebellion—the power to suspend the writ of habeas corpus, for example, and the power to raise and support armies, and the provision for the president to be commander-in-chief of the armed forces.
 
Liberals, though, were eager to break down the distinction between war and peace. They constantly referred to domestic problems in terms of war—this is why we have the war on poverty, the war on drugs, the war on illiteracy.
 
When Theodore Roosevelt was having difficulty negotiating a settlement of the 1902 coal strike, he threatened to take over the mines and use the army to operate them. When a congressman noted that he had no constitutional power to do this, Roosevelt replied, “To hell with the Constitution when the people want coal!”
 
And this was when Roosevelt was still in his relatively moderate phase as a Republican president. When he ran as an independent Progressive in 1912 he pushed the martial imagery still further.
 
He gave his famous New Nationalism speech to a group of Civil War veterans and made the argument that the country was as threatened by big business as it had been by the slave power in 1860.
 
Oliver Wendell Holmes, who Roosevelt appointed to the Supreme Court, similarly used war imagery in his opinions. One of his most famous decisions was the 1927 case of Buck v. Bell, in which the Supreme Court upheld state laws for compulsory sterilization of patients in state mental hospitals.
 
Eugenics was a great progressive cause, and the federal government will necessarily be making essentially eugenic decisions when it has the power to ration health care. Over sixty thousand Americans underwent sterilization in the twentieth century. Holmes, famous for his pithy opinions, observed:
 
“We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence.
 
“It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough.”
 
FDR routinely spoke of the Great Depression as a war. In his first inaugural, he told the American people that the government should “treat the task as we would treat the emergency of a war.” He told them, “If we are to go forward, we must move as a trained and loyal army willing to sacrifice for the good of a common discipline.”
 
He called for a “unity of duty hitherto evoked only in time of armed strife.” He asked Congress for “broad executive power to wage a war against the emergency, as great as the power that would be given to me if we were in fact invaded by a foreign foe.” (FDR had been Wilson’s assistant secretary of the navy and was one of the many progressives who learned the lesson that war empowered the government—that “war is the health of the state.”)
 
FDR’s first act as president, the suspending of bank operations known as the “bank holiday,” was executed under the Trading with the Enemy Act of 1917. This executive order was followed by the Emergency Banking Act of 1933.
 
Agencies like the National Recovery Administration were administered by former cavalry General Hugh Johnson, and made use of parades, propaganda, and symbols like the Blue Eagle—more than a little redolent of European fascism.
 
The title of the Agricultural Adjustment Act—the beginning of our system of farm subsidies—is revealing. It is “An Act to Relieve the Existing National Economic Emergency by Increasing Agricultural Purchasing Power, to Raise Revenue for Extraordinary Expenses Incurred by Reason of Such Emergency, to Provide Emergency Relief with Respect to Agricultural indebtedness….”
 
The claim appeared to be that if you used the term “emergency” often enough, constitutional restrictions on government would fall away. And the Supreme Court often agreed.
 
Chief Justice Charles Evans Hughes (himself a Republican progressive, who once said that “We live under a Constitution, but the Constitution is what the judges say it is”) said in accepting mortgage-relief legislation, which seemed plainly to violate the contract clause of the Constitution, that “Emergency does not create power, but it may furnish the occasion for the exercise of latent power.”
 
Contemporary liberals are still using this rhetorical strategy of war-emergency-crisis expand the power of government and evade the Constitution: “Never let a crisis go to waste,” as White House chief of staff Rahm Emmanuel put it.