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US: Reporter discusses how U.S. Constitution covers laser pointers

A Washington Post reporter discusses the question “Which part of the Constitution governs the use of laser pointers?” He says the answer is a “legal loop-de-loop” where Congress states it is acting against lasers in order to protect ‘commerce’.”

Writing on Constitution Day, September 17, David Fahrenthold frames the issue to illustrate a new House of Representatives rule requiring every bill to reference it’s Constitutional authority.
He first notes that there is no reference to lasers (invented in 1960) in the Constitution (written in 1787). But under H. Res. 5, the committee voting on H.R. 386, the “Securing Cockpits Against Lasers Act of 2011”, was required to cite “as specifically as practicable the power or powers granted to Congress in the Constitution to enact the bill or joint resolution.” The House Judiciary Committee duly reported that authority to act against laser misuse is in the Commerce Clause: Article I, Section 8, Clause 3. This clause instates “The Congress shall have Power … to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

Fahrenthold implies that the laser pointer example shows the current Congress’s “ongoing tendency to make the Constitution say whatever they want it to” on issues including lasers, abortion and schools. These topics are not referenced anywhere in the Constitution. Passing laws about them is justified under H. Res. 5 with references to “commerce”, the “general welfare” and the need for “necessary and proper” laws. (Congressman E. Scott Garrett of New Jersey had wanted H. Res. 5 to specifically ban use of the “general welfare” and “necessary and proper” clauses, but was rebuffed by Republican leaders.)

The author’s conclusion is that the Constitution is “not a precise, specific set of instructions.” Instead, it is “vague enough that Americans have spent the last 224 years arguing about what it means.”

From the Washington Post, with additional material on H. Res. 5, H.R. 386, the U.S. Constitution and its Commerce Clause