A Lesson in the Tenth

The gentlemen lawyers leading the case against Obamacare have a piece in the Wall Street Journal explaining the matter as they see it.  The core of the issue lies here:

The Constitution limits federal power by granting Congress authority in certain defined areas, such as the regulation of interstate and foreign commerce. Those powers not specifically vested in the federal government by the Constitution or, as stated in the 10th Amendment, "prohibited by it to the States, are reserved to the states respectively, or to the people." The court will now determine whether those words still have meaning.

Our friends on the Left often seem not to understand the nature of the claim that is being made here.  This claim is often misunderstood as a claim that "government" lacks the power to do something if that something is not specifically enumerated.  In fact, it is only the Federal government that lacks the power.  The states may or may not have the power, depending on their own constitutions and a few considerations that limit what kinds of powers any government may properly exercise.  This matter is spelled out later in the piece.

Under our Constitution's system of dual sovereignty, only states have the authority to impose health and safety regulations on individuals simply because they are present. The Supreme Court has ruled many times that the Constitution denies to the federal government this type of "general police power."

So 'the government' certainly does have the power, within the general limits of natural  law and the Bill of Rights; but the Federal government does not.  The Federal government is structurally placed to be an incredibly powerful organ, and concentrated power is deadly to individual liberty.  The controls of the 10th are meant to answer that concern.  An overweening state government can be escaped by moving across the border; but a tyrannical Federal government has power throughout the United States and, indeed, global reach.

Nevertheless, the existence of a general police power is not denied by the Tea Party or the Right more broadly.  However important it is to restrain that power, there are some few cases in which it is necessary.  Consider Zucotti Park.

However sympathetic you may be, or may not be, these "occupation" protests pose a legitimate danger to public health.  The most predictable thing in the world was the outbreak of diseases in these encampments.  The danger increases when people are coming from different walks of life, bringing with them diseases to which the others may not have the same resistances.  The outbreak of tuberculosis in a similar camp in Atlanta will not be an isolated incident if steps are not taken to ensure that sanitation is preserved.

This is the lesson of every army that has marched to war in three thousand years.  For that matter, it was true in the foreign residence hall I lived in while in China, where I encountered tuberculosis (which I cured via main force application of Chinese beer -- strong medicine, for the cure was complete, though my tests showed the presence of TB antibodies for a few years afterwards).  Maintaining camp sanitation for an extended time requires proper training and something like military discipline, neither of which have been obviously present among these protests.

Balancing any first amendment right to free speech and freedom of assembly is important, to be sure.  Still, especially in a case in which the encampment is in the center of a large city, the risk to public health is tremendous.

No one from the Right denies this.  The debate is about the limits of the power, and its locus.  There are powerful advantages for all of us, Left and Right, in having an America that respects Federalist limits:  it makes it much more likely that we shall all have a country in which we can live pleasantly, and in harmony with our individual values.