Enumerated Powers and National I.D. Cards

Mercurial Times ^ | November 16, 2001 | Aaron Armitage

[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 doesn’t mention I.D. cards. True enough, as far as it goes (which isn’t 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, it’s 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. It’s 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 you’ll 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 Scalia’s 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 they’re 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 driver’s 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 I’m 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 couldn’t possibly see the world we live in now and all the changes that have happened. That’s why they wrote the Constitution the way they did. They knew that they couldn’t possibly write explicit prohibitions on every federal abuse that would be thought of in the future, and didn’t 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 they’ll 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. He’s rightly criticized the tendency to read things into the Constitution that aren’t 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. There’s 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.

[Liberal Classic]

Of course, he overlooked the lack of authorization for it in the Constitution.

Yes, I would be interested to hear his opinion on enumerated powers. I am of the mind that is question really should have said:

"If you think it's a good idea to have a national identity card, persuade your fellow citizens to pass a constitutional amendment allowing it."

If this is the best out of Scalia, who is purportedly the most "constructionalist" on the court then I fear for the Republic, as the saying goes. I don't want "constructionalists" on the bench, I want "literalists." I want someone who will read a part of the constitution that says "Congress shall make no law" and actually figure it to mean that Congress shall make no law on the subject. I don't know why a document in English actually needs interpreting. I speak it well.

[E.G.C.]

BTTT!!!!!

[alpowolf]

I don't know why a document in English actually needs interpreting

Be careful with that common sense. The JBT fans will be after you. They will tell you that reading what a document actually says is "utopian".

[Dr. Frank fan]

I do support a NATIONAL standard for the issuance of STATE ID's [...] ... and I also believe it should be VOLUNTARY..

I am just curious. How could a "national standard for the issuance of state ID's" possibly be "voluntary"? I cannot envision what you are describing.

If you pass or enact a "national standard" for state IDs, that part is not so voluntary (for the states). Or do you mean "voluntary" in the same sense that the state ID's - driver's license, usually - are "voluntary" for people? (I.e. "voluntary" unless you actually want to drive a car anywhere, or live any sort of normal life....)

But even that doesn't sound to "voluntary" to me in the first place, except in a highly technical sense.

No offense, but it just seems like supporters of this or that ID card plan like to throw in the word "voluntary" just to make it sound more palatable, when in reality it has no basis in fact.

[Wm Bach]

This being the case the authority for this would be included in the Power to Make War...

...on the American People.

[packrat01]

"Bookmark" it, and it goes to your FR homepage.

bump

[KentuckyWoman]

"What am I missing"?????

Does the term "Juden" ring any bells?

Those who will not learn from history are destined to repeat it.........who knows, maybe they'll just be happy to put "gun owner" on our IDs and leave it at that....yeah, Right!!

Also remember that when initally instituted the SS card was guaranteed to NEVER be used for identification purposes. My original card even stated this quite plainly on the back - NOT TO BE USED FOR IDENTIFICATION PURPOSES -- does the NEW card that I had to obtain after I married carry this disclaimer? Nope.... Loss of freedom and liberty is generally done incrementally and a National ID card (IMHO) is just another small incremental step with even more POTENTIAL for abuse by the feds and all their unconstitutional agencies.

[KentuckyWoman]

Gee!! Maybe they want to make sure that your 8-year old daughter isn't planning to hi-jack the plane!! Yeah, that MUST be it!

Maybe they're just trying to go ahead and get the little ones accustomed to having to provide ID so they won't have a problem with it later in life. (Just a thought.)

[packrat01]

Your group is pretty spread out. What'd you use, a shotgun?

[packrat01]

Tell 'em to pound sand. If they insist, tell 'em that the birth certificate is in a safe-deposit box for safekeeping. If they get really snooty, say in a real loud voice:

Do you morons think my 8 year old daughter is a

TERRORIST?

[A.J.Armitage]

They want to make people "feel safe". Screw feeling safe, I want to be safe, and carding 8 year olds is distracting resources from that, as would a national ID. "Zero tolerance" in a high school or anywhere else is both tyrannical and pointless. But as long as the vapid soccer mom types out there feel safe, I guess none of that really matters.

[Alabama_Wild_Man]

...Loss of freedom and liberty is generally done incrementally and a National ID card (IMHO) is just another small incremental step with even more POTENTIAL for abuse by the feds and all their unconstitutional agencies...

Just one more little adjustment of the dial...for the Frog in the Water - - -- - - that's about to start boiling...

[davidosborne]

REPLY TO POST #64

Thank you for taking the time to respond to my post.. As you are obviously aware, A drivers license IS the most common form of ID, and as you correctly stated, it is not REQURIED, unless of course you want to drive...

I support the standarization of drivers licenses, ISSUED BY THE STATES, NOT the Federal Government, this would prevent a person who has a LONG history of offenses in one state from simply moving to another state and getting a "Clean Slate".. I see this often, and I think that it is important for us to create a system that does not make it so easy for people to have numerous "identities".

I know this view will cost me a few votes from my libertarian friends, but I think the benefits of such a system outweigh the "anti-privacy" claims..

David C. Osborne (For U.S. Senate in 2004)

David

[Dr. Frank fan]

Thanks for clarifying, and to be honest perhaps I could be convinced to go along with your approach. At least more so than people who want to create a whole new card and federal database and bureaucracy and so on.

I still just bristle at the term "voluntary", however. I don't see the need to call it "voluntary", and find it slightly misleading, especially when presumably it would be de facto necessary to get them (in the form of state Driver's Licenses, or whatever) to live any sort of ordinary existence. Of course, I have much the same problem with calling Driver's Licenses "voluntary", so maybe it's just me... :)

As for your concerns about "clean slates" and so on - while warranted I'm sure, I thought this was supposed to be about fighting terrorism, in particular. And to be quite honest I'm not convinced that any new, expanded "ID" proposal will help us do that.

[davidosborne]

I appreciate the way you handle disagreement...I wished more people that disagreed with me did so as respectfully..

As for the "multiple identity" problem, the reason a standardized system would fix that problem, is because current technology allows a photo (or whatever means of positive ID is used) to immediately "flag" an existing "match" on an ID issued by another state, at which time the individual would be asked to "clear up" whatever issues exist with the previous state before asking for another ID from another State... ONLY if their are OUTSTANDING extriditeable warrants issued by the previous state would a person be taken into custody..

Does this clarify my position, or provoke further debate?

David

[Dr. Frank fan]

Don't praise me too much, I can be pretty sarcastic when I want to be :) And of course the politeness of your posts rubs off on others and encourages the same.

Does this clarify my position, or provoke further debate?

I think it clarifies, and actually we're pretty much on the same page when it comes to standardized IDs as a way of fighting the multiple-identity, "clean slate" problem.

I'm just not sure we're helping to fight "terrorism" per se, anymore.

There's also this:

current technology allows a photo (or whatever means of positive ID is used) to immediately "flag" an existing "match" on an ID issued by another state

Well, I'm not sure current technology is that good. There will be many false positives. Imagine going to the mall with your kids and being detained, "could you step aside and come with us just for a few minutes sir?" while they "clear up" the fact that a computer image processing algorithm thinks you look like some deadbeat dad from Florida.

Again, probably what still sticks in my craw about it is that it doesn't seem to be about fighting terrorism. It seems to be about a whole bunch of other stuff, which, however valid the goals may be, is definitely not what is being advertised as the Reason We Need A Better ID System.

The justification being advertised is purely and simply "to fight terrorism", that's what people will think it's for, and that's why people will support it.

Then all these other uses back-door their way in. And in the meantime I'm not sure terrorism has been stopped at all.

[gerg]

Am I the only conservative that actually supports a national ID card? It would among other things, lessen the chance a person from one state would get mis-treated by police in another state (arrested instead of ticketed for speeding). Another problem I have is the apparant fragrant violation of the 14th amendment that occurs at liquor stores. They don't allow those with out of state ID's buy beer. This would be solved with a national ID. I have never been convinced that it would erode our rights. Please save the breath for more important things like protecting our rights to keep and bear arms.

[A.J.Armitage]

Am I the only conservative that actually supports a national ID card?

I hope so.

It would among other things, lessen the chance a person from one state would get mis-treated by police in another state (arrested instead of ticketed for speeding).

Why? There will still be out-of-state plates.

Another problem I have is the apparant fragrant violation of the 14th amendment that occurs at liquor stores. They don't allow those with out of state ID's buy beer. This would be solved with a national ID.

Or we could just get rid of the drinking age.

I have never been convinced that it would erode our rights.

How about your right to exist without government approval?

Please save the breath for more important things like protecting our rights to keep and bear arms.

As I explained, it's unConstitutional. The Constitution is not a small issue.