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Commentary: The Founders made me do it

This article first appeared in the St. Louis Beacon, Oct. 21, 2010 - Mark Twain defined a classic as "a book which people praise and don't read." The same can be said of the United States Constitution.

"The Constitution is not a suicide pact."

--Justice Robert H. Jackson

Like the Bible, you can usually find some phrase from the Constitution that seems to advance the cause of your personal prejudice. People thus invoke parts of the venerable document in support of a wide variety of contradictory viewpoints without bothering to consider the larger import of the manuscript as a whole.

Currently, liberals and conservatives are locked in dubious debate over the 10th and 14th Amendments. Commentators from the political right cite the Tenth as bedrock proof that much of the president's agenda -- specifically health-care reform -- is patently unconstitutional, while those on the left are shocked -- shocked, I say -- that anyone would dare advocate changing provisions of the sacrosanct 14th. Neither side seems to recognize that as amendments, both of these writings represent modifications of the original text.

The Case for the Tenth

In its entirety, the 10th Amendment reads as follows: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Those 28 words provide the foundation for the doctrine of "enumerated powers" for the federal government. The founders were highly distrustful of centralized authority. They had, after all, fought a long and bloody war of independence against the British throne and were anxious to ensure that the blue print for a government they were drafting would not supplant one autocracy with another.

The Bill of Rights -- of which the Tenth is the final entry -- specifically limited the powers of the new government. But as originally ratified, those limitations only applied to federal power. The individual states were free to limit the rights and privileges of their respective citizens as they saw fit -- only the federal government was precluded from doing so.

Enter the Fourteenth

This situation adhered until the end of the Civil War when Congress became concerned that the repatriated Confederate states would use the power of their state governments to deprive their newly emancipated slave populations of their civil rights. The Fourteenth remedied that fear by making the due process provisions of the Bill of Rights binding upon the states.

Also with an eye toward the civic status of former slaves, the amendment defined citizenship: "All persons born or naturalized in the United States ... are citizens of the United States and the State wherein they reside."

The Present Controversy

The current contretemps over these amendments revolve around the issues of mandated health insurance and illegal immigration. Conservatives contend that requiring citizens to purchase private insurance exceeds the enumerated powers of the federal government, thus relying on the 10th Amendment to defeat Obamacare. They also advocate repealing the "native-born" provision of the 14th to eliminate the problem of so-called "anchor babies" — American-born children of illegal immigrants

The progressives' position is, of course, the exact opposite. They contend that the 10th is an anachronistic antiquity that has been rendered all but meaningless by generations of case law but argue that the 14th is a pillar of liberty that must be held inviolate.

From a strictly constitutional perspective, both sides have a point. Like it or not, the 14th Amendment as presently constituted clearly provides that people born here are citizens and that all citizens are equal before the law. On the other hand, fining people for not purchasing an insurance product from a private entity would appear to exceed the constitutional powers enumerated for the federal government.

Of course, lawyers are verbal contortionists, so counter-arguments can be made. Remember that the 14th states that the native-born are "citizens of the United States and the State wherein they reside" (emphasis my own). According to the dictionary, to reside is "to dwell permanently or for a considerable period of time ..." The case could be made that a woman who sneaks across the border to deliver a baby does not reside in any state and neither does the infant within her, thus circumventing the endowment of citizenship for the child on a not totally unreasonable technicality.

Similarly, you could argue that the penalty for not carrying health insurance is, in fact, an excise tax, which Congress has the authority to impose. Under that theory, a citizen would be lawfully taxed for the "privilege" of being uninsured.

Tortured legalities that lead to absurd conclusions are the result of reading the letter of the law while ignoring its intent. The 14th Amendment was written to ensure that the freedom purchased with the blood of Union soldiers would not be stolen under the rubric of states' rights.

It was never intended to secure benefits for the offspring of foreign nationals who'd arrived here illegally. In fact, when it was ratified, the U.S. had neither tax-supported public assistance nor a formal immigration policy.

And while the 10th Amendment clearly limits the powers of the federal government, it did not do so at the expense of the founders' expressed goal of promoting the general welfare.

The general welfare of 1789 and that of the moment are obviously very different propositions. Had you suggested organ transplant surgery to one of the Founders, you might have been hanged for promoting sorcery. Yet today, this now mundane miracle routinely saves countless lives. As circumstances changed, so did the social obligations attendant to them.

The Constitution is not a suicide pact; nor is it a guarantee of paradise of earth. It is, rather, a formula for governance -- for determining the collective response to the challenges we face.

Presently, health care reform and illegal immigration are pressing issues of public concern. Each needs to be addressed with characteristic American pragmatism and common sense.

To shirk those obligations by hiding behind the skirts of the Constitution is to do disservice not only to ourselves, but to the nation the Founders provided for us.

M.W.Guzy is a retired St. Louis cop who currently works for the city Sheriff's Department. His column appears weekly in the Beacon.