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.
If a national ID card becomes law, just try living a normal life without one. What do you think you are going to do, just call up the Fedgov and say you don't wish to have one? Then you will be on the FBI's terrorist list.
how much go*****ed I.D. do they want? does hillary want a 1984 TV in every room? will the old tv show 'i spy' make a comeback?
after going through giving double sets of fingerprints, an FBI check and $60 fee, all for a concealed carry permit, they shouldn't even have to bother with me anymore!
Then there's the expense. Ah, you say, Larry Ellison of Oracle will give the govt the database software for free. But he will charge for maintenance and upgrades. Besides, the major cost of a database is not the software. That's actually a tiny portion of the cost. Requirements analysis and design are far more expensive. And think of all the govt data entry people you'll need. The people to verify that everyone with access to the database is actually entitled to access. Etc, etc.
And access: to be usable on a national level millions of govt people would need access to your data. Does none of this concern you?
I'm amazed. Should this read "If you think it's a good idea to have an identity card, persuade your fellow citizens?"
I have heard a proposal that NID cards be optional rather than mandatory. Now what would be the purpose in that? I think it's just an attempt to subtly slip it into america's conscious. "Nothing to worry about, don't like it don't do it" way to stifle debate. Silly, since most today wouldn't recognize the dangers of such a card. Soon after the attacks I watched a polling of a "Home Town Meeting" on this and the majority thought it would be an excellent idea!
Thank you for the flag to this. Another great job, AJ!
Even if we don't manage to spark a movement for a Constitutional Amendment, it will come in handy for dealing with those on FR whose Cult of Personality has clouded their better judgment where trusting the government is concerned.
Nothing much. Only the "666" on your forehead, and you'd be complete!
I hereby dub thee an "honorary old fart" for your endeavors.
Don't peg me as a big government sheeple type. If you want to fight government intrusion in the lives of ordinary citizens, let's start with the gestapo known as family court that is badly in need of some sunshine, and federal judges like Jerry Buckmyer (sp?) of Dallas who can order a welfare housing project to be built in your neighborhood. But that's another thread.
All you stated here was what you think. No offense, but that really isn't relevant here - I'm more interested in the Constitution and the facts, as opposed to your personal experiences.
But if you don't have a good id system in place, how will you stop bad guys from just getting fake ids like the 9-11 guys and enjoy the mobility of citizens?
There is no such thing as a fraud-proof system. What leads you to believe determined terrorists won't obtain fake IDs of this new card just as easily as the current system? I'd venture to say the only people that will profit from this new scheme are the forgers.
So, anyone who wants freedom or privacy is a "criminal"?
I don't know you personally, but I'm willing to guess that if you caught someone peeping into your window while you're "gettin' busy" with your old lady you would kick his ass, or perhaps call the cops. What are you gonna do when you find out he is a cop?
I hate to be the one to break it to ya, but being an employee of the government does not in itself make someone a paragon of virtue.
Thanks for the personal biographical information (what this "reminds" you of, and a personal anecdote about your experience with caller ID). It's been fascinating.
However, the relationship between this information you have shared with us, and a rational argument in favor of a government-mandated National ID Card, is unclear.
These analogies you keep attempting to construct fail in the one area that is relevant: namely, a National ID Card would (if it means anything at all) be mandatory for people to carry, and failure to carry such a card would result in prosecution. If you want to keep throwing out analogies, you'd better start to make sure the analogies are appropriate in this respect.
No one is forced to get this or that credit card, or this or that telephone number. Under any realistic NID proposal, they would be forced to get a NID card after registering biometric info with the government.
It's just such a huge difference that it is bizarre that you can't see it.
I don't particularly like having my finger print on file with the DMV but since I'm not planning on being a fugitive from law or ex wife any time soon, I'm not going to lose sleep over it.
(More fascinating biographical information...) I'm not losing sleep over it either, but I still disagree with it. Just because I'm not losing sleep over it doesn't make it right. And it certainly doesn't mean that one flawed policy (fingerprint collection) can rationally be used to justify another (government NID cards). It is simply not a valid argument. I suggest you stop trying to use it.
Re terrorists: NID card would seem a good first step at tracking people on visas which is sorely lacking right now.
What a disingenuous arguer you are. If it's only for tracking people on visas, then I don't need to carry one (since I am not here on a visa), so therefore the point is moot and there's nothing to discuss. Next.
But if you don't have a good id system in place, how will you stop bad guys from just getting fake ids like the 9-11 guys and enjoy the mobility of citizens?
Not all the 9-11 guys used faked IDs, you know. Some of them - maybe even the majority - used their actual identities.
One problem here is that many people seem to be convinced that what went wrong on 9/11 is that we didn't know who they were. If only we knew who they were, then somehow (miraculously) it would not have happened!!
But, this is an idiotic thing to think. You don't seriously believe this do you?
I'm not an advocate, yet, of NID cards. Just trying to grasp implications I haven't thought of because my type is so egocentric and all.
In that case, I'd say that there's one major "implication" that you need to grasp, and it gets us back to the main subject of this thread: The Constitution does not authorize the federal government to do this thing, and therefore, it should not be done. By default.
And, if you find yourself in favor of doing this thing, then you are, de facto, in favor of trashing the Constitution.
So, you can figure out where you stand on your own. At this point I'm pretty sick and tired of arguing with people who haven't fully thought it through, but still (for some reason) seem almost ready to jump on board the proposal, and slander anyone who isn't (i.e. the "if you're not a deadbeat dad you've got nothing to worry about" argument...). If you want to get a NID card because you'd find it so "convenient", then go ahead. Just think twice before trying to force me to do the same: you've got no right to do that, and I resent the neverending, solipsistic attempts by so many (even here on FR!) to try to goad me into thinking otherwise.
Couldn't agree more with latter statement. Peeping Tom cop? I'll blast him with my canon. Camera, that is. :-) Has this happened to you?
You will be when a cop demands your NID card and you don't have it.
Cop: "Show me your NID."
You: "Musta left it home."
Cop: "Then get in the cruiser - you're going downtown to the station until we verify you and fine you $200 for failure to produce NID card on demand."
You: "But I didn't do anything wrong! and I'm supposed to pick up my date for the movie in 20 minute!"
Cop: "TS. Get in the car. You're gonna miss more than the movie. The ID verification office doesn't open until 9AM Monday."
Cop: "Do I have to spell it out for you? You are to be detained at the county jail until we identify you, and that won't happen likely until Monday afternoon."
You: "But today's Friday!"
Cop: "Sucks to be you."
You: "AAAAAAAAAAA!!! Not fair!"
Ben, a NID basically means it's illegal for you to exist without possessing the card. Go see what happens in other countries with such IDs - it isn't pretty. Sure, people "get along OK with them"...but they certainly aren't free.
Just when you thought you might actually be innocent of something, then something comes along and bites you in the @ss. Case in point, (and certainly the only time a government agency has screwed up) I went to re-finance my home mortgage this month and the lenders decided to do a credit check on me. Imagine MY suprise when my credit check showed that my child support payments to the state of PA (where my ex-wife lives with my children) had been "formerly in collection but now caught up." After the typical runaround by a government agency, they stated that after they transferred my case from one agent to another, their database showed me in arrears for several months. I've NEVER missed a child support payment, and they very NEARLY f*cked me over because of their incompetency.
Do I want my name in another gov't sponsored database? NO, and if you think they aren't going to screw it up and potentially damage people's reputations, you are far too naive.
And I'm not a libertarian, just a darn republican.
You're right and unless they can do a better job of preventing fake or fraudulent national ID cards than they presently do with SS cards we won't be much further ahead.