Does morality trump legality?

A simple question: "Where in the Constitution is Congress granted the authority to (fill in the blank)?"

The blank here is, "take money from one set of taxpayers and give it, as charity, to others."

I know many people, probably heavily over-represented among my colleagues in the clergy, who will answer about the moral imperative to care for the poor, to give aid to those in need, and so forth. Those points I do not dispute. What I do dispute is that the Bible presents this as the proper role of government as opposed to the divinely-directed duty of adherents to the covenants of the Jewish or Christian faith.

However, that's not the discussion I am really trying to start here. I doubt that my colleagues from the conservative to the liberal wings of our churches would dispute that Christians are commanded by the tenets of our covenant to love our neighbors as ourselves. (And I note that the Good Samaritan took matters into his own hands, with his own money, not pawning the battered, broken traveler off onto society at large or the government.)

My question is this: Do the limits of the US Constitution actually mean anything here? Where in the text does it grant the Congress the power to take from you and me and give it, as charity, to others?

This is not a question about Congress's power to tax. It is about its authority to use taxation for purposes not enumerated in the Constitution.

We already know Democrat Sen. Mark Warner's answer: the Constitution doesn't grant Congress the authority to pass the healthcare bill before it, but it doesn't matter because Congress has trampled on the Constitution so long that there's no reason to stop now.

I am confident that some persons would answer that the Constitution is a "living document." As best as I can determine, what that means in practice is that its text and enumeration of powers can be ignored in order for the Congress to do what it wants. Occasionally the federal courts, including SCOTUS, hold this tendency in check, but not very well or often. And at least as often, the courts themselves have taken the "living document" approach rather liberally.

My answer is that the Congress has no such authority granted it. If indeed the state of health care is so dire that public monies must be used to pay directly for medical care of some people (and eventually everyone), then let Congress introduce a proposed amendment to the Constitution so the people and states may grant that authority. That Congress has already been paying for such care for decades doesn't change the question or the principle at stake.

I might even support such an amendment provided there were appropriate checks and balances built into it. Neither the power granted to Congress nor its authority to tax for this or any other purpose can be unlimited.

Like it not, there is no authority in the Constitution giving Congress the power to spend public monies for charitable purposes, as President Grover Cleveland understood well. In vetoing a bill using public funds for drought relief in Texas, he wrote,

I can find no warrant for such an appropriation in the Constitution and I do not believe that the power and duty of the general government ought to be extended to the relief of individual suffering which is in no manner properly related to the public service or benefit. A prevalent tendency to disregard the limited mission of this power and duty should I think be steadfastly resisted to the end that the lesson should be constantly enforced that though the people support the government the government should not support the people

This present-day town haller knows this also:



So the question again: Does the healthcare emergency (if such it really is) trump the limits of the Constitution? If so, does it mean that any situation Congress thinks is an emergency - say national security during wartime - also trumps the Constitution? If not, why not?

If we cleave to the Constitution and law to order the powers of our government, we will never achieve a perfectly just ordering of the goods of society. Rough justice, in Reinhold Niebuhr's phrase, will be the best we will ever do. But human freedom and flourishing will be protected as much as they can be, as long as the laws are just.

If we decide now to have a government of wants, not laws, the end will be anarchy and gross inequalities among classes of the people based on power and political influence. The poor's plight will not be relieved, just shifted to a new set of "outs." Cronyism and demagoguery will become the routine ordering of political life after immutable principles are discarded.

Treating the Constitution as pliable rather than directive brings our legal system into its own Alice in Wonderland, where power, not justice, is the point:

'When I use a word,' Humpty Dumpty said in rather a scornful tone, 'it means just what I choose it to mean--neither more or less.'

'The question is,' said Alice, 'whether you can make words mean different things.'

'The question is,' said Humpty Dumpty, 'which is to be master--that's all.'

It is through the Constitution that the people of our country remain sovereign. If we permit Congress to divorce its lawmaking from Constitutional limitations, we the people will no longer be sovereign. We will be subjects.

Shall we have a government of laws or of passions of the day? That is the real question before us.

Update: As for whether the administration or Congress think that reforming health care is an emergency, the answer is self-evidently, "no," since, as Thomas Sowell reminds us, the bill, if passed, will not even take effect until 2013.