Is It Permissible?

There's both widespread medical and popular agreement that a healthy daily diet consists of fruits, vegetables, complex carbohydrates, varied proteins, 6 to 8 eight glasses of water, calcium and little or no table salt. This diet, coupled with 6 to 8 hours of daily sleep, in addition to a regimen of aerobic and resistance exercise, no smoking and only moderate alcohol consumption, would greatly improve American health and fitness.

The problem is that not all Americans have habits and tendencies that comport themselves with such a healthy lifestyle. Thus, the question becomes: what can we do to promote the welfare of Americans and hence our nation? The answer's easy. Congress should enact a law mandating healthy diets and exercise along with the necessary and proper implementing legislation. Any congressmen in opposition to this legislation could be brought into line simply by media portrayal of him as having a callous disregard for American health and fitness.

Obviously, good health and fitness is a good idea. The question is whether good ideas alone form the basis for congressional enactment of laws. The answer would be difficult if we didn't have a document laying out the rules of the game, namely the U.S. Constitution. Since we have a constitution, the answer is easy. We see whether the constitution grants Congress the authority to mandate healthy lifestyles. According to my reading, it doesn't.

Therein lies what should be the heart of debate of congressmen who want to cut Washington down to size: what Congressional acts are impermissible under the Constitution? The answer begins with Article I, Section 1, that says, "All legislative Powers herein granted shall be vested in a Congress of United States . . .." There operative word is "herein." Later, in Section 8, there's specific enumeration of those powers. As it turns out, the Constitution grants no authority for at least two­thirds of congressional spending and virtually all the legislation enacted in a given year. Unfortunately, we have a kangaroo Supreme Court that sanctions the acts of a rogue Congress.

You ask, "Williams, how can Congress and the Court get away with trashing the Constitution?" Mostly, it's a result of public constitutional ignorance and contempt but crafty congressional deception is part of the answer. A Harvard lawyer, familiar with legalese mumble­jumble, could easily establish the constitutionality of health and fitness laws through the "commerce clause" that gives congress authority "To regulate commerce with foreign nations, and among the several states, and with Indian tribes." He'd simply argue that poor health and fitness has an adverse effect on individual productivity; that, in turn, adversely impacts interstate and foreign commerce.

You say, "Williams, that argument is the height of asininity!" You're right and such asininity is the trademark of congress and the courts. For example, in 1994 Congress passed the Gun­Free School Zones Act justified by saying, "[T]he occurrence of violent crimes in school zones . . . has an adverse impact on interstate commerce and foreign commerce of United States." In a narrow decision the Supreme Court found the Act unconstitutional. Justice Souter dissented, therefore agreeing with Congress, by saying, "The only question is whether the legislative judgment is within the realm of reason."

We have an illegitimate Congress and Supreme Court. Both have massive government might to impose their will, but they have little or no moral authority. If people sworn to uphold the Constitution don't obey it, why should we the people obey their edicts? The only answers I find are ignorance and/or the fear of death.

Walter E. Williams
December 20, 1995
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