Was Joe Wilson Right?

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Published September 18, 2009

| FoxNews.com

Congressman Joe Wilson (R-SC) has been disciplined by his colleagues in the House of Representatives because he called President Obama a "liar" during the president's address to a joint session of Congress last week. The statement that the president made, which apparently provoked the Congressman's outburst, stated that illegal aliens would not receive health care benefits under the president's government option proposal, which essentially proposes a Medicare-type program for everyone in America under the age of 65.

The president was the editor-in-chief of the Harvard Law Review when he was in law school. -- This is the single most prestigious position to which any law student can aspire. The president was also a member of the faculty of the University of Chicago Law School, where he taught constitutional law. This is the most difficult to join and most demanding of all law school faculties in the country. His legal education and his academic credentials as a legal thinker are truly extraordinary. From this we can conclude that he knows, or ought to know, the basic law of the land.

The Constitution imposes on the government numerous burdens that we as individuals do not have. For example, I can tell my nephew to keep quiet at the dinner table because I don't like what he said about grandma, but the First Amendment prevents the government from keeping him silent on a street corner when he criticizes it. Similarly, I can give a gift to some of my nephews and nieces because they are great kids, but I don't need to give gifts of equal value, since I can spend my money on gifts however I wish. But the government has some burdens here that individuals do not. The Constitution requires that the government treat all persons similarly situated in a similar manner. This is the essence of "Equal Protection," which the Constitution requires of the states and the federal government.

In the late 1970s, the State of Texas enacted legislation that denied a public school education to the children of illegal immigrants and denied state aid to municipalities that attempted to educate those children. Many illegal immigrants filed suit and all of the cases made their way to the Supreme Court. In a landmark ruling, that most lawyers know about, and that every professor of constitutional law knows about, called Plyler vs. Doe (1982), the Court ordered Texas to make the same education available to illegal immigrants as it does to citizens. In so doing, the Court held that: (a) the Constitution protects "persons;" and (b) persons are citizens as well as strangers, people born here and people who end up here, people here lawfully and people here unlawfully; and (c) in the area of social services, whatever benefits the government makes available to the general public cannot be kept away from a class of persons based on their immigration status or that of their parents. 

It is because of this ruling that Proposition 187 in California, which attempted to do via a referendum what Texas attempted to do via legislation, was invalidated. It is clear from the broad language in the Plyler case that providing an education is in the same class of social benefits as providing health care.

Now, back to Congressman Wilson and President Obama. Can anyone really suggest that the Harvard Law School-educated University of Chicago-employed professor of constitutional law did NOT know the law when he contended that the Congress can keep universal health care away from illegals? He must have known that, short of amending the Constitution to re-define "persons" and "Equal Protection," whatever the Congress makes available by way of social services to the general population, it must make available to all persons. 

There is no question that under the present law, Congress simply cannot pick and choose which "persons" to whom it will afford social benefits and to which "persons" it will not. How could the president not have known that?

Judge Andrew Napolitano is the senior judicial analyst for FOX News Channel.

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http://www.foxnews.com/opinion/2009/09/18/judge-andrew-napolitano-joe-wilson-right-obama