This may be far from Virginia history, so I will try to be brief and
then perhaps we can move on to other things (or not). 

The word "national defense" does appear in the Constitution, in the
preamble ("provide for the common defense").  This is different than
than the military provisions of the "eunumerated powers" of Congress
listed in Article I, Sec. 8 (which are quite limited and narrow).  

I agree with Mr. Dozier that under the preamble Congress has the power
to provide for the national defense.  Thus, under the necessary and
proper clause Congress may create and air force, institute consrciption,
raise money through taxes, build service academies, etc.

However, the preamble also charges Congress to "promote the general
welfare" and "establish justice."  All of the other things Mr. Dozier
does not like (federal support for publication education and various
other programs) are the implementation of the  obligation of the
national government to "promote the general welfare" and "establish
justice."  The DC public schools are a direct responsiblity of Congress
under Art. I, Sec. 8, Cl. 17 ("To exercise exclusive Legislation ...
over such District...").  

So, all of Mr. Dozier's complaints (apparently about almost all federal
legislation since Woodrow Wilson -- nearly 100 year of) are not issues
of Constitutional power.  If he concedes Congress has the power to
create a service academy or the air force under the preamble -- "to
provide for the common defense" -- then he must concede as well that
Congress has the constitutional authority and power to do all these
other things to "promote the general welfare" and "establish justice."  

So the only issue here is that Mr. Dozier does not like most American
domestic policy and he does not think it wise to have a Dept. of
Education, or to have required integration of all federal programs under
the Great Society, or to do many of the other things the federal
government does, such as giving federal money for local police
departments? having the FBI? creation of national parks?  building
national highways? using the Army Corps of Engineers to build dams and
levees?  disaster relief?  regulation of air traffic safety? social
security? medicaid? the TVA? environmental regulations?

But these are all policy choices, determined by Congress and the
president, they are not about Constitutional power.  

Putting it another way, if you can constititionally have the air force,
West Point, and the space program then you can also, constitutionally
have the Department of Education and all the other social and economic
programs we have.  Whether we should have them, or whether they are wise
policies is a matter for a different conversation and would require an
serious analysis, policy by policy, program by program.  That is surely
for a different list serve.

----

Paul Finkelman

President William McKinley Distinguished Professor of Law Albany Law
School 80 New Scotland Avenue Albany, NY 12208

518-445-3386 (p)

518-445-3363 (f)

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