Limited government or national government

[Robert Sheridan]

http://tinyurl.com/7d66b6p

The link above is to a Christian Science Monitor article captioned:

How Founding Fathers helped argue the health-care case at the Supreme Court
The clash of ideas at the core of the Supreme Court debate over Obama’s health-care law is as old as the nation itself, and the spirit of the Founders was present before the assembled justices.


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A question I have is this:

Which branch of government, and under what circumstances, has the power to declare that a problem is national in character, degree, or scope, and thus subject to federal creative and regulatory power, as opposed to strictly local, meaning state power?

Justice Breyer, according to the report, above, pointed to M'Culloch v. Maryland as illustrating that federal power could and did create a national bank and thus alter and enlarge commerce as a national proposition.  Jefferson opposed.  Scalia, today, opposes.  Both of the latter take the position that the Constitution is supposed to have created a federal government that is limited in scope, meaning power to create or regulate.  If so, then why not draw a line in the sand here, today's opponents demand, with mandatory participation in the new federal healthcare program?  Incidentally, I seem to recall reading that the argument in M'Culloch spanned some twelve days; it is considered remarkable in light of current practice that the ACA argument this past week spanned three days, M-W, and six hours.

Jefferson, for all his insistence on a strict construction of the Constitution in M'Culloch, swallowed his objection in purchasing the Louisiana Territory from France, despite the lack of a provision in the Constitution for doing so.  I'm reminded of the great line in the court-martial scene in "A Few Good Men" when the prosecuting attorney asks a bright young Marine whether there's any reference in the Marine manual to the notorious off-the-books punishment/hazing practice called "Code Red" that has resulted in the death of one of the men in the company.  There isn't, but that doesn't seem to prove that the practice doesn't exist, and persist, despite the lack of mention.  

On cross-examination, the defense attorney, played by Tom Cruise, confronts the point by asking the young Marine whether there's any reference in the manual to eating meals in a designated facility.  There isn't.  

So how, asks Cruise, did you know where to eat since arrival at the base in Guantanamo?  

"I don't know," replied the Marine.  "I guess I just followed the line to the chow hall."

Perhaps our Manual lacks reference to the Chow Hall.  

This doesn't mean we don't find our way to a place to eat.

rs








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