bobsheridan at earthlink.net
Fri Nov 11 14:41:45 PST 2005
Fair warning: This post is long and about things that I think are
related to Con-Law as reflected in public spending:
The issue of proper public spending under the Constitution goes back at
least to Hamilton's expenditure to build lighthouses to aid navigation
for the Coast Guard which protected the revenue stream (customs
duties). Although not in the text, Hamilton regarded it as necessary
and proper in support of delegated powers. His loose federalist
construction came to a head when the issue was the Bank and the war over
it, settled preliminarily by Marshall in McCulloch and finally, at least
until 1914, by Jackson, with his veto of the bank charter renewal bill,
aided by Taney, who not only wrote the veto message, but, as Treasury
Secretary, withdrew the federal funds.
Pres. Bush recently approved the expenditure of $7.1 billion to combat
avian flu. China, according to today's NYT has quarantined 118 people
and slaughtered over a hundred thousand of poultry to contain outbreaks
there. The virus is capable of transfer between humans and some animals
and can cause deadly epidemics easily spread worldwide, or pandemics.
The recent SARS outbreak is a small example.
It was reported that Bush had read "The Great Influenza" (Penguin,
2004-5, paperback) by John M. Barry, a multilayered account of the 1918
pandemic that killed half a million people in the U.S. including many
soldiers overcrowded into bases, and sailors aboard ship, en route to
the war in Europe.
Barry paints a picture of Woodrow Wilson leading the country to war in
which he wanted the whole country mobilized and it did mobilize.
Opposition to the war in any form could result in arrest and
imprisonment. Hence the FA cases on clear and present danger, which was
easily found. There was little federal spending on the behalf of
civilians to protect and prevent, and to treat the sick and dying.
Barry points out that even a mild outbreak today would have devastating
consequences, since we've closed a lot of hospitals and haven't enough
nurses. Today's supply chains are so long and thin (see Tom Friedman's
"The World is Flat") that a break due to illness anywhere in the chain
can disrupt entire industries.
That made me wonder about the notorious "Sick Chicken" case of 1935
(Schecter Poulterers) in which the Court, with Charles Evans Hughes,
C.J., writing, after reciting that an overwhelmingly large percentage of
chickens consumed in New York City came from out of state were
nevertheless not in interstate commerce once in the hands of the
slaughterer and marketers in NYC. A quick review of the opinion
revealed that the federal government had legislatively promulgated a
"marketing plan" a sort of fair trade law, I believe, by which wholesale
purchasers were not allowed to cherry-pick the best chickens, but had to
take the run of the coop, the bad with the good, the test being whether
the chickens could run a certain distance. Sick chickens were allowed
to be culled out, but the rest had to be taken. I wondered why the
statute wasn't upheld on the theory that the health of poultry affected
commerce in goods as well as human health. As best I can tell by
checking the opinion, that issue seems to have been either not raised or
was subsumed under larger issues. \
That was puzzling because 1935 wasn't all that long after WWI and the
great influenza, often called the Spanish flu. Barry writes that there
is little literature about the great flu, apart from contemporary and
medical descriptions of the illness; in other words artists such as Dos
Passos, Hemingway, Faulkner, and Fitzgerald did not employ it as a theme
(p 393), except that Mary McCarthy in 'Memoirs of a Catholic Girlhood'
did as did Katherine Anne Porter, who lost her fiance, did in 'Pale
Horse, Pale Rider.'
It just seems that in different ages of America people thought a lot
differently about some things than we do today and it is hard to
reconstruct what justified that thinking. I hadn't realized, until the
recent thread, that there was such a political difference between
liberals and conservatives as to public spending. This seems to be
theme that goes back to the founding, unless it is not a continuation
but an issue that appears from time to time when someone needs to urge
or oppose a great deal of federal spending. Did liberals and
conservatives battle over the space effort under JFK? Or was that
subsumed under the space race with the Soviets, which I tend to think
explains why it wasn't a big issue, since both sides could get behind that.
The Public Health Service and the National Institutes of Health got
their start as the result of the 1918 pandemic. The hunt for the
pathogen that caused the flu took decades, is ongoing, and a cure has
not yet been found. The disease itself is worse than any case of the
flu you've ever survived. It was not until scientific knowledge and
technique conducted in the hunt for the cause of the flu, was able to
proceed to the smaller virus level, and then to the DNA, and today to
the molecular level that a preventive vaccine was developed. Today
Roche Pharmaceutical of Basel, Switzerland, holds the patent for
Tamiflu. GlaxoSmithKline has an inhalant that is also said to be
helpful. These are in the news because Roche is offshore and holding
tightly to its patent rights, which they are in process, under pressure,
of licensing to Taiwan, Vietnam, and others. We depend on foreign
suppliers. It takes 6-8 months to prepare the vaccine after an outbreak
occurs and the type of flu is identified.
It would be of interest to know the Constitutional power by which the
U.S. funds these public health and research agencies. The World Health
Organization is the principal monitor of influenza worldwide; I assume
our participation there is by treaty under the U.N. It's easy for me to
see Commerce and War or defense powers as authority to protect millions
of productive civilians as well as military-man and woman-power.
Spending for the General Welfare seems easy if there are no
restrictions. A pandemic is another form of invasion and war, perhaps,
worse than terrorists. One of the big fears is that terrorists may use
one of the 51 weapons germs that the federal government tries to keep
Barry's book, incidentally is excellent, and puts those early FA clear
and present danger cases in context and a new light that show why those
cases have been so difficult to deal with then and now. It was
unpatriotic then to allow Debs, for example to oppose the war. The
influenza epidemic was officially under wraps here for that reason. No
newspaper could refer to it, since this might lower morale in wartime.
The reason it was called the Spanish Flu is not because it started
there, but because Spain wasn't in the war and its newspapers could
write about the pandemic, which they did. Hence the Spanish Flu, as
Spain was the only place talking about it in public.
Is there a conflict between liberals and conservatives over spending to
prevent and treat an influenza outbreak, or as we are calling it today,
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