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.
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.
The quotation in the column is from the AP. (Which has its wire articles here.) I'm sure Scalia would agree with your version as much as with the one he's reported as having said, since he considers it a legislative matter, not a judicial one. Of course, he overlooked the lack of authorization for it in the Constitution.
Sounds interesting. Is anyone already working on it?
Well, I've never caught anybody. But I'm not sure you get my point. Ordinary people like you and me need privacy and freedom. As I've already pointed out a national ID/database system would be accessed by millions of people. (I observe that you did not attempt to refute this.) Existing databases have been abused by govt employees for personal reasons: stalking women, retaliating against people who piss them off, extortion, etc.
Do you seal envelopes before you mail letters? Do you close your curtains at night? Gee, you must have something to hide!
See how ridiculous it sounds?