I got a lot of conservative hate mail for my piece on why the individual mandate is constitutional, most frequently about this paragraph quoting Yale Law Professor Jack Balkin:
"Liberals should take a page from the Tea Partiers and wave their pocket Constitutions around and ask, what part of regulating commerce between the states don't you understand?" Balkin says. "What part of tax and "provide for the general welfare" don't you understand?"
The phrases "necessary and proper" and "provide for the general welfare" might be somewhat disquieting to conservatives. But those phrases are as much a part of the Constitution as the "right of the People to keep and bear arms." The Constitution meant to grant "limited and enumerated powers" to the federal government actually grants some pretty broad ones. But that's exactly why, as former Supreme Court Justice David Souter has explained, constitutional interpretation is about the difficult task of reconciling the Constitution's conflicting values, not simply obtuse readings of the parts we like.
Conservatives rightly point out that the Preamble to the Constitution states:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."
Except Balkin wasn't quoting the Preamble. He was referring to Article I, Section 8:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
The verb "provide" refers to both "the common Defence" and "general welfare." The confusion may stem from my punctuation mistake: I enclosed both "provide" and "the general welfare" in one set of quotes. The phrase "provide for the general welfare" doesn't appear in the Constitution, but this is the same thing as people referring to the "right to bear arms" as opposed to "the right of the people to keep and bear arms." It's an imprecise verbal shorthand, but it doesn't substantively change what it means. "Provide" doesn't disappear because "common Defence" comes before "Welfare." Providing for "the general Welfare" is among the powers given to Congress in the Constitution.
In any case, unlike Article I Section 8, the Preamble is non-binding. Insert new START joke here.
