The worst thing about debating legal issues is the constitutional illiteracy that afflicts our country. Most know the Bill of Rights in outline, but few have carefully studied the Constitution. As a result, a few fairy tales about our system of government must be dispelled.

Myth 1: Federal judges are appointed for life.

Article 3 Section 1 of the Constitution states that federal judges “shall hold their offices during good behavior.” In Federalist No. 79, Alexander Hamilton notes that “if they behave properly, (judges) will be secured in the places for life.” (Hamilton idealistically, perhaps recklessly, does refer to permanence in office.

The myth of life terms exists because the elected branches are too lazy to enforce the good behavior standard, for they are too busy dreaming up new government agencies which will eventually become excuses to raise taxes.

Myth 2: The “elastic clause” allows Congress to assume power not constitutionally delegated.

The so-called “elastic clause” allows Congress “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers” (Article 1 Section 8).

There are three terms of interest: necessary, proper and foregoing powers.

“Foregoing powers” is easy. Congress is not delegated the power to regulate education; therefore, the Department of Education, No Child Left Behind Act, subsidies for public schools, etc. are all unconstitutional.

“Necessary and proper” requires more thought. Consider the power to regulate interstate commerce. In the abstract, this power can range from requiring ingredient labels on food and medicine to controlling prices.

Ingredient labels are necessary and proper because consumers have the right to know what they are buying. Furthermore, labels promote the ideal of perfect information which is a property of the ideal marketplace in economics.

Price controls create shortages and surpluses. Both cause inefficiency in the market, and shortages can create civil unrest. Retail price controls caused California’s blackouts in the summer of 2002. Thus, price controls are neither necessary nor proper and, therefore, unconstitutional.

The “elastic clause” is not elastic at all. It imposes further restrictions upon congressional power. The 10th Amendment clearly states all powers not delegated to the federal government, nor denied to the states, are reserved by the states. This is the origin of terms “delegated powers” and “reserved powers.” Congress cannot regulate education, but the states can.

Myth 3: The federal government has the power to protect the “general welfare.”

The phrase “general welfare” only appears twice in the Constitution. Firstly, in the preamble, “general welfare” is in the purpose clause listing reasons why the Constitution was ratified. Secondly, in Article 1 Section 8, “general welfare” is in the purpose clause listing reasons why Congress is delegated the power to lay and collect taxes.

In his paper, The Commonplace Second Amendment, Professor Eugene Volokh explains the significance of the purpose clauses in 18th and 19th century legal documents. These clauses are not legally operative. They provide future generations with reasons to respect and maintain the powers or rights established by the main clause of the sentence.

Don Norvell is a physics graduate assistant and a columnist for the Daily Kent Stater. He may be contacted at [email protected].