Skip to comments.Enumerated Powers and National I.D. Cards
Posted on 11/19/2001 9:21:07 AM PST by A.J.Armitage
After delivering a speech in Columbia, Missouri, Justice Scalia was asked if he thought national I.D. cards would be unconstitutional. He said that the Fourth Amendment doesnt mention I.D. cards. True enough, as far as it goes (which isnt very far at all). Scalia then added that opponents should try to pass an amendment to the Constitution. If you think it's a bad idea to have an identity card, persuade your fellow citizens.
Not only is a national I.D. card not mentioned in the Fourth Amendment, its not mentioned in Article I, Section 8, or any other part of the Constitution that grants authority to the federal government. That observation ought, by itself, to settle the issue unless the supporters of national I.D. cards can get an amendment passed. Its a bad sign when even Justice Scalia misses what should be such an obvious point.
We lost something important with the almost complete emancipation of the federal government from the old limits on its powers. Unfettered government expands and pushes back the area of private action, like a foreign species driving out the native ecology. (This, by the way, is the only context youll ever see me use the word unfettered as a bad thing: fetters are chains. Remember that next time a politician calls something unfettered.) Liberty yields to Power. When the government is less limited, individuals are more limited. One of Scalias major themes, and one which he has right, is that not everything bad is unconstitutional. Fortunately, the Founders knew how dangerous government can be, and wrote the Constitution in a way that does make unlimited federal expansion unconstitutional. They enumerated some powers, and denied the federal government all others.
Scalia went on to add that if there were a national referendum on national I.D. cards, he would probably vote to not have them, so at least he recognizes the fact that theyre bad policy. The first reason is how creepy they are and how much they resemble what a totalitarian country would have. This is not a trivial objection. They run contrary to the character of the American nation.
If they had been in place on September 11, the World Trade Center would have been destroyed by airplanes hijacked by men with national I.D. cards in their wallets next to their drivers licenses. Mohammad Atta would have proven to a higher degree of certainty than he did that he is indeed Mohammad Atta before getting on the plane, which Im sure would have been a great comfort to the victims. Like most retractions of liberty in a crisis, it would have nothing to do with the crises and everything to do with subjugating ordinary people.
The card would not just lead to abuses of power, it would be an abuse of power in its own right.
The Constitution, if we followed it, would prevent this kind of thing, which is why we ought to follow it. But the Founders couldnt possibly see the world we live in now and all the changes that have happened. Thats why they wrote the Constitution the way they did. They knew that they couldnt possibly write explicit prohibitions on every federal abuse that would be thought of in the future, and didnt try. They only prohibited a few big ones, mainly in the Bill of Rights, which was adopted later, and the others are excluded by not being enumerated as powers. National I.D. cards are part of that vast realm of things prohibited to the government by not being granted to it, although no doubt someone will argue that they regulate interstate commerce because theyll help the economy by creating a new market for fake I.D.s for people under 21.
Justice Scalia has always refused to legislate from the bench, as he should. Hes rightly criticized the tendency to read things into the Constitution that arent there in order to fraudulently claim a political agenda as a Constitutional mandate. No such manipulation is needed to stop national I.D.s. In fact, such manipulation would be needed to have them. Theres no need to twist the Fourth Amendment because the meaning of the Tenth is clear. This is the genius of the Founders: they prohibited a great many abuses by not granting the power to commit them.
Thanks for the bump, but I disagree with you here. The argument is made by the citation from Scalia. This may or may not be bad policy, but even though Scalia appears to agree that it is bad, as he said that has no weight at all on the question of whether or not it is Constitutional. Policy questions are not up to the courts, but instead are for the legislative and executive branches of government, and the people, not the courts.
On the question of Constitutional justification for the legislation, I am not a lawyer, but from the viewpoint of policy, I consider that it is certainly arguable that the cards might be of benefit to the national defense (even if only by making cases against terrorists easier to prosecute). This being the case the authority for this would be included in the Power to Make War.
All the examples you've listed are privileges. You do not need to have a credit card, cell phone, or to drive a car. A NID would literally be a license for existence. That's the major difference in my book.
Two other points: this proposed NID would do nothing to actually help the situation, and as this article illustrates the federal government's role is not to issue ID cards.
great article, but this point hits home. How much better of a nation would we be if the "general welfare" clause hadn't been raped and pillaged?
"This is the United States Constitution. Here is what the government can legally do and how they can legally do it. Everything else is up to the States or the People!"
Only too bad they don't hammer this point home in PUBLIK SKOOL!!!
The freedom to exist without having a NID card, for one. (Sorry, was that one just too obvious that you missed it?)
As a cell phone user and a credit card user, I'm extremely easy to track but I have not noticed anyone tracking me except for marketeers.
They know that if they do something to truly offend you, then you will just cancel your cell phone and/or credit card.
What if the government uses your NID card to try to track whether you have guns, and then (later) to take them away? How will you "cancel"?
I guess you haven't thought about that.
My driver's license in Texas now has my thumbprint associated with it.
Same with mine in California. And I'm none too happy about it; if I had my druthers, that policy would be abolished.
You can't use one misguided policy to justify another. Did you think you could?
I'd love to trade all the plastic crap in my wallet with a single, universal smart card that only I can use to make purchases or vouch for my identity.
Go for it. I won't stop ya.
What am I missing?
You're missing the fact that just because you, personally wouldn't mind doing something doesn't mean it is therefore justified to force all your countrymen to do the same thing. In short you are missing the fact that the world does not revolve around you and your personal preferences.
It's a common mistake.
P.S. I notice you made no attempt whatsoever to actually argue that forcing everyone to carry a NID card would help stop terrorism. Which (I thought) was the whole justification for it. But the fact is, it wouldn't help stop terrorism, so I'm not surprised that you made no attempt to argue to the contrary. It was a wise move on your part.