It’s not in the Constitution!
February 10, 2010 at 12:22 am 52 comments
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Most Republicans, some independents, few democrats, all libertarians and even anti-government activists agree the health care bill is unconstitutional. And when asked how the bill is unconstitutional one of the two most popular answers is given: the government cannot force you to buy a product or it’s not in the constitution. Both answers often leave health care advocates speechless and without recourse. Nevertheless, aside from the rarity of a common creed existing across the political spectrum, are those answers truly irrefutable?
Before the constitutionality or mandate (forced purchase) question can be addressed, the concept of a public health care system must first be examined in context to American history and civilization. Not the public health care system itself, the bill or the service the bill provides, but rather health care the institution in principle. According to Dictionary Online, principle is defined as a fundamental, primary, or general law or truth from which others are derived.
For example, traditional faiths generally advocate one should not steal, however, the holy books from which those teachings are derived makes no mention of taking a look at unsecured files, not belonging to you, over the internet. Though there is no mention of the internet or electronic means of obtaining information in traditional faiths, the principle of taking something that does not belong to you is there; not literally but figuratively.
Throughout American history several social bureaucracies were instituted by our fathers, for reasons deemed important to promoting a healthy society and ensuring the posterity of a more perfect union. Our fathers, in their wisdom, petitioned Congress to institute these social bureaucracies, because their collective experience thought it necessary to provide society with certain endowed public goods, not to be deprived from any person in society.
The wisdom of our fathers created the Food & Drug Administration, which protects food and drugs that are consumed by the public, both foreign and domestic. The institution was largely created because many drugs on the market were pseudo medicines, harmful mixtures, and remedies that included, but not limited to, substances such as cocaine. Furthermore, companies or merchants were not required to fully disclose the ingredients contained in the products they sold. That was left up to the consumer to determine whether the labeling told the truth or possessed the contents it displayed. The Federal Trade Commission Bureau of Consumer Protection now assumes that responsibility.
The Federal Emergency Management Administration (FEMA) was created to provide financial and logistical assistance in times disaster, natural or manmade. The social institution was created because of the knowledge of the widespread, devastating effect on families and businesses disasters can inflict in the absence of a safety net. Government, which is the people, thought the best insurance policy was with the insurance company with the biggest pot and the ability to operate fairly, be financially accountable and transparent in all aspects of operation, at the fairest price. The biggest pot was the public pot; the only company capable delivering public accountability and transparency was a bureaucratic institution controlled by the people, subject to laws, regulation, and the courts.
The Department of Transportation, Department of Education, Social Security Administration, Department of Health and Human Services’ Medicare programs and the Federal Aviation Administration are a few more of the government operated, social institutions that are not explicitly mentioned in the Constitution.
Are these institutions then unconstitutional? If so, why should the government provide such a service or be involved? People should have the liberty to choose free enterprise in which all sales are private and not allow government to stand between your farmer and your food or between your doctor and your medicine. But free to purchase medicines without the scrutiny and consent of government; free to produce food and goods to no standard but one’s own; free to fly personal aircrafts where pleased?
The generations before, our fathers, thought it necessary to create social institutions accountable to the people. Our fathers believed, absent these social institutions, in the natural event their civilization grew or suffered a tragedy such as stock market crash, high unemployment, war, disease, or a natural disaster they could not be assured a private company would have the capacity to effectively handle the situation or use these instances of tragedy to profiteer. Thus, the people created a company to meet these challenges and stipulations in which the public is the executive board, management and shareholder.
The people of the United States have the power to setup such a social institution and mandate purchases through the appropriate means which is through Congress. Congress has the power “…to exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof,” Article I Section 8 of the United States Constitution.
Furthermore, “…Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration,” as ordained by the 16th Amendment of the United States Constitution. The power to mandate purchases.
Au contraire! Some of the social institutions were legitimate because they are consistent with the role of government; and as stated in the Preamble of the Constitution, government has an obligation to promote the general welfare, provide for the common defense, and insure domestic tranquility.
The health of society is a general welfare; devising a system that adds to the ability of society to guard against sickness and increase access to treatment is providing for the common defense; not having 45 million people potentially one sickness away from bankruptcy or death and preventing thousands more from dying because they lack insurance is insuring domestic tranquility.
Nevertheless even after all that is said, there will still remain those who deny America’s great history of accomplishments and oppose progress toward a more perfect union. But what more can be said, after all, the Constitution never states you have a right to an education.
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Related Articles:
Health Care: Road to Washington – an article that discusses the public option with respect to past legislation with similar costs and concerns:
http://keironjackman.wordpress.com/2010/01/12/health-care-the-road-to-washington/
Abortion Religion & Politics – discusses abortion in the context of religion, constitution and its role in today’s politics:
http://keironjackman.wordpress.com/2010/01/25/abortion-religion-politics/
Obama the Builder: You have a Contract – an allegoric look into Obama’s first year:
http://keironjackman.wordpress.com/2010/01/04/obama-the-builder-you-have-a-contract/
Entry filed under: Health Care, Politics. Tags: .
1.
Mike Z. | February 10, 2010 at 1:50 am
Very interesting, now, how to make people read and be honest.
2.
mr brown goin' to town | February 10, 2010 at 5:11 am
why do you kill car insurance while you’re at it. why the hell should we pay (mandatorally) to have car insurance?
3.
Aaron | February 10, 2010 at 7:34 pm
Car insurance is only mandatory for people who choose to own cars. The government doesn’t force them to buy cars.
4.
mr brown goin' to town | February 10, 2010 at 5:11 am
*dont, not do
5.
mr brown goin' to town | February 10, 2010 at 5:14 am
the idea of unconstitutionality of these things is ridiculous; yes, the constitution says “We the people” and that means “we the people” (70-80% of us anyway) want a public option for health insurance, are we going to get it? not if the 10-20% of minorities hijack healthcare again… that’s unconstitutional in a democracy
6.
xracerx99 | February 18, 2010 at 4:30 am
Let’s get the facts straight about the public option… the polling data reveals:
Sixty-three percent (63%) of voters nationwide say guaranteeing that no one is forced to change their health insurance coverage is a higher priority than giving consumers the choice of a “public option” health insurance company.
The latest Rasmussen Reports national telephone survey finds that just 29% take the opposite view. They say it’s more important to give people a government-sponsored non-profit health insurance option.
Currently, 53% of insured voters say it’s likely they would have to change their health insurance coverage if the health care reform plan proposed by President Obama and congressional Democrats becomes law. That helps explain why 54% of voters believe that the health care system needs major changes, but just 41% support the comprehensive reform proposed by the president.
The fear of being forced to change insurance coverage can be seen in results from a pair of survey questions.
The first question finds that 46% favor the creation of a government-sponsored non-profit health insurance option that people could choose instead of a private health insurance plan. Thirty-seven percent (37%) are opposed.
The second question asked about the creation of a public option if it encouraged companies to drop private health insurance coverage for their workers. Given that possibility, support for the public option falls to 29%, and opposition rises to 58%.
Even if it encourages employers to drop private health insurance for their workers, 51% of Democrats still support the public option. Eighty-two percent (82%) of Republicans and 61% of voters not affiliated with either party are opposed.
Forty-eight percent (48%) of all voters believe private health insurance companies would provide better service and more choice than a government-sponsored non-profit health insurance option. Thirty-seven percent (37%) believe the government-sponsored option would offer better service and more choice.
7.
JK | March 22, 2010 at 2:01 am
This US government is not a democracy and was not meant to be. This country has a Constitutional Republic form of government. Democracy is the same as mob rule.
8.
Gernadethrower | February 10, 2010 at 6:42 am
Not sure how you got from the authority to create and manage the District of Columbia plus the N & P clause = Congress can do what it wants.
Good argument about social needs; disagree on the solution and your assertion of 47 million uninsured.
Before we try central planning; shouldn’t we try free markets rather than the current corporatist/government assistance program we have?
First of all we need to examine how we got into this hole. Wage freezes needed to keep cost of war material low during WW2 led to employer based health insurance which came to be used as pre-paid medical plans rather than insurance programs (everyone eventually gets sick). Since insurance plans were written for the company not the employee, 1 year limits on the contracts ensured that the company could adjust according to economic needs. This created the problem with “pre-existing” conditions (policy ends each year and any illness developed in that year becomes a pre-existing condition to the new contract).
Add to this government programs pay less than market price (varies by program I think) thus transferring costs onto those not using government programs (expanding gov programs w/current or proposed pay structures and then start to talk about increase insurance costs).
Add to this a federal law that prohibits interstate commerce in insurance plans (The McCarran–Ferguson Act, 15 U.S.C. §§ 1011-1015) allows state governments to throw on every health mandate that is desired by any lobbyist group thus squeezing out any competition for the big insurance companies.
In sum, by a series of good intentions (and special interest lobbying) we have gotten our self in to a real pickle. Solution? Start talking about how we got here and take small steps to fix a very convoluted and messed up system. A small step (like repealing McCarran-Ferguson), then watch for few years to see what happens and then adjust again. We got into this mess by 60 years of decisions; one huge bill that tries to solve all these issues at once is a bad idea.
9.
Hawley | February 26, 2010 at 6:20 pm
And yet, we don’t have a few years, time is the one luxery we do not have. Health care costs continue to spiral way out of control. More employers drop their program, more people lose coverage and when they wind up in public hospitals with catastrophic conditions the goverment foots the bill. Add to thsi the vast disadvantage that providing health insurance to employees plces on American manufacturers and you can see we are in crisis.
10.
WSJevons | February 10, 2010 at 2:56 pm
HOLY CRAP!
A rational, bipartisan discussion of Health Care and, more generally, the role of government in our society.
Thanks for the post and thanks to the ‘commenters’ for giving even more to think about. (Just when I thought I had my mind made up . . .)
11.
still standing | February 10, 2010 at 3:03 pm
A just government is not an institutional thief- its job is not to take from some and give to others. That way lies madness, oligarchy, dictatorship. Its only just function is to secure rights, and the methods of coercion needed to do that are utterly unsuited for anything else.
12.
yportbill | February 10, 2010 at 5:06 pm
All you speak about are constitutional changes and not guaranteed but are given to states which separately govern for each of it’s citizens.
13.
Wendy Phillips | February 10, 2010 at 5:41 pm
Very good post. Good sound arguments. An eye-opening and refreshing perspective from a “Republican?”
14.
Babci Cathy | February 12, 2010 at 3:26 pm
Wendy, why could you contribute such an inane comment to a very reasonable discussion?
15.
John Adams | February 10, 2010 at 6:14 pm
Whoa! There is a huge disconnect here. you start with because Gov’t can regulate things that arent specifically mentioned in the Constitution and declare there ore that Gov’t can mandate that one must engage in private activity. That is simply wrong. Can the Federal Government create a national health care delivery system and preclude private action? Possibly but unlikley. I am at a loss to think of one area of commerce where the Government has made illegal the private sector. It can regulate but it cant eliminate. None of your examples are this. There are private Schools, unregulated FDA “drugs”, private roads and FEMA just doesn’t even fit in the debate.
However, the current health care debate is not about a national system supported by taxpayer dollars where the Gov’t levies taxes and then creates a health care system (like Medicare) and provides a service. That may or may not be Constitutional (remember no one has ever asked the Sup Ct to see if Medicare is. I am not saying it is or isnt, just that no one has ever challenged it. But I digress and its not the point)
Instead the Gov’t is allowing the private sector to be the purveyor of health insurance and then making it illegal not to buy it. That has never been done anywhere in the history of this Country. Its not – you have to pay taxes – no you dont – only if you meet a threshold, its not you have to buy car insurance – no you dont – only if you drive.
Here ihe Fed Gov’t is requiring the citizen to engage in a pvt contract just because you are “alive and a citizen” That is quite scary. Even if we agree that health care should be reformed is this the basis upon which we want it to happen. There is no legal basis then to prevent the Government from requiring you to engage in all kinds of private contracts and pick winners and losers. By the way an interesting anomaly is that if you are not a citizen you get health care but cant be charged with the crime. Vacationers and visa holders here for a short period, for example, get access without charge, it would violate several treaties we have with other countries to do otherwise. I am not sure how someone here illegally could even meet the law. If they can’t then they cant be charged (I defer to criminal lawyers on this one)
I think your analysis misses the actual constitutional question. The issue in Constitutional law is not – should we, or even can we? – but is the government empowered to do so? Even if a clear majority of America can agree that it wants something from the Government – that still precludes unconstitutional action. For example if 75% of American citizens wanted the US to have a national religion you couldn’t do it until the Constitution was amended. We are not a democracy in the purest sense we are a Constitutional Federal Republic.
Many pundits and politcos seem to forget that there is a rule book they need to folow and stay within the confines of the Government we have set up. It’s called the Constitution and we have to follow it – or change it. We cant simply ignore it.
16.
Jane | March 19, 2010 at 3:58 pm
“Can the Federal Government create a national health care delivery system and preclude private action?”
Where did you get this straw man from? Even if the government were to establish a single payer national health care system funded by tax payers, anyone who wants it could still purchase private insurance in addition to the government plan. Thats how it works in the UK for people with means. And all this nonsense about ‘rationed care’ is pure BS. Health care is already rationed based on what people can afford to pay and what insurance companies are willing to cover. The same thing is true for a government insurance plans. If you want more, you’re free to pay for it with cash.
“Instead the Gov’t is allowing the private sector to be the purveyor of health insurance and then making it illegal not to buy it. ”
I’ve got a better example of the government ‘overstepping its bonds’. Under current laws the government is forcing private entities to provide services to people who have no ability to pay for it. Should the government have this right? Should hospitals and doctors be compelled to provide health care to uninsured deadbeats who are excersing the right to be uninsured? If a willfully uninsured person is in a serious accident, why should ambulances and emergency rooms be forced to treat them and pass their losses on to other people willing to pay for health insurance? They should just let them die. http://en.wikipedia.org/wiki/Emergency_Medical_Treatment_and_Active_Labor_Act
17.
Blechhh | February 10, 2010 at 7:09 pm
Mr Axelrod, is that you?
18.
al-ozarka | February 10, 2010 at 7:11 pm
There are a LOT of us who do not believe that this health-care “reform” will do anything but HARM people’s ability to get good healthcare.
But that’s the liberal goal, ain’ t it? To lower the quality of life for the majority to make things “better” for a small minority.
19.
Dibou | February 10, 2010 at 7:38 pm
If “we the people” want the government to control our health care then it will take a constitutional amendment to do so.
Why on earth would our constitution SPECIFICALLY state they have the power to run a postal service? Isn’t a postal service helping interstate commerce? Doesn’t it promote the general welfare? Sure but that power is SPECIFICALLY listed because that is something that we the people agreed the federal government should do. We the people did not specifically agree the federal government can control our health care.
If “promote the general welfare” allows Congress to force us to buy a product, please tell me where the power of Congress is limited. If Congress thinks everyone should exercise 30 minutes a day (which people should do) and it will lower our health care costs (which it would as people get healthier) can they force us to exercise? It promotes the general welfare.
To put it simply if “promote the general welfare” can apply to anything, then it can apply to anything. That one phrase can be used to render the rest of the Constitution as meaningless.
20.
Aaron | February 10, 2010 at 7:57 pm
Most of this blog post has nothing to do with constitutionality.
“Before the constitutionality or mandate (forced purchase) question can be addressed, the concept of a public health care system must first be examined in the context of American history and civilization.”
Based on the title of this entry, the CONSTITUTIONALITY of a mandate to force people to purchase healthcare should be the first thing you discuss, if not the only thing.
Assuming for the sake of argument that forcing everyone to buy health insurance on threat of prison time is a good idea as you assert, just because something is a good idea doesn’t mean that Congress can do it.
You discuss the FDA, FTC. Those are permitted under the interstate commerce clause.
“Government, which is the people, thought the best insurance policy was with the insurance company with the biggest pot and the ability to operate fairly and be financially accountable and transparent in all aspects of operation, at the fairest price.”
This is a completely incorrect assessment of why the government provides flood and earthquake insurance. It has nothing to do with accountability, transparency or fair prices. It is because private insurers insure only risks that can be distributed among large groups of people. For instance, a health insurance policy may cover someone who develops cancer, but it is unlikely that everyone on the policy will develop cancer at once. If someone has flood insurance and submits a claim, it is likely that everyone in the area will submit a similar claim. Thus, risk is not spread. Thus, insurance companies don’t cover it, which is why the federal government stepped in. (This may not be constitutional either, but it’s incomparable to the health care argument; not everyone alive in the United States is required on pain of imprisonment to own hurricane, flood or earthquake insurance).
“The Department of Transportation, Department of Education, Social Security Administration, Department of Health and Human Services’ Medicare programs and the Federal Aviation Administration are a few more of the government operated, social institutions that are not explicitly mentioned in the Constitution.”
Some of those (dept. of education, for instance) are unconstitutional. Others, such as the FAA and DOT are permitted under the interstate commerce clause.
The 16th Amendment allows Congress to lay taxes and levies. In other words, it can take your money, not force you to give it to someone else directly, which is what a mandate to purchase health insurance would be.
The power of Congress to legislate does not come from the general language Preamble, but is limited and enumerated under Article I. Note that the Preamble does not specifically mention the Congress. Therefore, if your argument were valid, could the President not unilaterally declare whatever he though to be in the interest of the general welfare to be law?
You are correct in that two of those powers include the power to regulate the District of Columbia (not sure why that’s relevant) and the Necessary & Proper Clause.
I suppose that Congress could, if it wanted to, require residents of DC to purchase health care. They might have to repeal the DC Home Rule Act of 1968, which would obviously raise questions about their loyalty to the democratic process.
The Necessary and Proper clause, however, only empowers Congress to execute laws necessary and proper to the execution of the previously enumerated powers.
For instance, the FAA, FTC, and USPTO (at least for trademarks; patents are specifically enumerated) are permitted under a combination of the IC and N&P clauses.
Presently, insurance companies are not permitted to sell policies across state lines, so they are not in interstate commerce. Hence, Congress has no similar authority to regulate them.
21.
BT | February 10, 2010 at 8:44 pm
This section:
Furthermore, “…Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration,” as ordained by the 16th Amendment of the United States Constitution. The power to mandate purchases.
It’s delusional. The power to levy taxes is not a power to mandate a private commercial transaction!!!
22.
Interesting argument but..... | February 10, 2010 at 8:45 pm
Interesting argument, but it seems to be taking the term “general welfare” too far.
The Constitution is very specific about what the responsibilities are for our congress. From a post office to the military. A great deal of time was spent on the development of the military. If you look at the Preamble, “in Order to form a more perfect Union, establish
Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity,” it talks about the protection of the Union. (Take the whole thing in context) Also, read further down to where it states for the “common Defence and general Welfare of the United States.” This being the job of our military, the protection of the Union and the United States. The post office and the post roads mentioned in the Constitution would also be necessary for the protection of our union.
Congress should be providing for the protections for our liberties. That’s it.
I do not believe your argument has provided for the constitutionality of this monstrosity which is called National Health Insurance/Care Reform. Sorry, but I disagree.
23.
Ken Royall | February 10, 2010 at 9:26 pm
In fact the Dept. of Education and Energy probably are unconstitutional. They were created during the Carter years and haven’t accomplished a thing other than to waste our money. The notion that past overreaching by government somehow makes all future intrusions legitimate is asinine on its face.
You also seem to be confusing the meanings of the words “promote” and “provide”. Anyone who thinks that government was created to provide our every need is a fool. You cannot grant a right to someone when it confers an obligation onto someone else to provide and pay for that right. Mandatory purchase of health insurance does this because those who claim they can’t afford it will be subsidized by others.
That is involuntary servitude and is a violation of the 13th amendment of the Constitution. One could also make the case it is a violation of the Equal Protection clause of the 14th amendment.
24.
Tom Convery | February 11, 2010 at 7:24 am
If you tried to offer a compelling argument that a law mandating the purchase of health insurance would fall within the authority of the Federal Government, you failed in the eyes of this reader. You cited no precedence, nor anything even close in current law. The real test will be if a mandate is passed and signed into law. My bet is that the issue will proceed swiftly to the Supreme Court and will be overturned on a 6 to 3 vote.
Ref. one of your readers comments concerning state laws compelling car insurance, there is no parallel. Driving is a privilege, not a right and as such the way around paying for insurance is to not drive. There is no similar way to avoid a compulsory health insurance mandate.
25.
JohnMD1022 | February 11, 2010 at 6:13 pm
First, in this blog, the author quotes a section of Article I of the Constitution. Why, I do not understand, as that portion of Section 8 applies only to the District of Columbia.
Second, Amendment XVI applies to the collection of taxes. This is not the same as mandating a purchase of a service.
Third, the Preamble to the Constitution establishes no powers or rights. It is a general statement of the purpose of the Constitution, the specifics of which are then stated in the various Articles. Consequently, the general welfare clause is meaningless in this regard.
The whole post is specious.
26.
Bob | February 12, 2010 at 8:04 am
“Throughout American history several social bureaucracies were instituted by our fathers, for reasons deemed important to promoting a healthy society and ensuring the posterity of a more perfect union. Our fathers, in their wisdom, petitioned Congress to institute these social bureaucracies, because their collective experience thought it necessary to provide society with certain endowed public goods, not to be deprived from any person in society.”
This is fine rhetoric, except most of your examples don’t come from “throughout American history.” They almost all come from the era after the Great Depression.
If you want to make arguments about the Constitution and the history of what our “fathers” did, take at least five minutes to read up on the history of constitutional interpretation for the first 150 years of the US. For most of the “American history” you cite, Congress and the Supreme Court took the issue of federalism VERY SERIOUSLY, and every federal law could be challenged and often easily overturned if it didn’t fit the strict definitions given in the enumerated powers of the very section (Article I, Section 8) that you cite.
Then, basically, the Great Depression caused a lot of people to look to the government for handouts. FDR promised them, and he wanted to create massive federal bureaucracies to implement them. The Supreme Court basically overturned his laws left-and-right, because they clearly violated the 10th amendment… they were not enumerated powers for the federal government, and therefore the federal government had no authority to pass them.
So, FDR threatened to change the size of the Supreme Court and appoint a bunch of his handpicked justices if the court didn’t stop dismissing laws under the traditional interpretation of the Constitution that the Framers intended and which had stood for 150 years.
The court caved. Suddenly, they were allowing all of this previously unconstitutional legislation to go through. And once the legal precedents were established, future courts have basically allowed Congress to do whatever the heck it wants.
THAT’S the reason for most of the powers you cite, not because they are inherent in the Constitutional language. And this interpretation was not true for most of the history of the US. It was a President who confused the balance of powers and forced a Supreme Court into submission until they came to support his anti-federalist laws.
So before you go around lecturing everyone on history and the Constitution and what our “fathers” did, please take a look at how the country was run for most of the US’s history first.
27.
keiron Jackman | February 12, 2010 at 8:56 am
You have an interesting point but it does not make it correct. You mention tradition is if the traditional view is the correct view. I sure hope you are a white male who owns land — totally, not mortgaged, totally debt free. Cause as much as you have this forum to voice your perspective, a traditional view on that privilege would be null and void, because traditionally only white (free) male land owners could have afforded an opinion. And so what if you are, my point is though slavery as a practice was somewhat constitutional, jim crow laws as well, women not having the right to vote — they were all incompatible with the founding principles of this country as stated in the declaration and the preamble of the constitution and rightly overturned. Lincoln who had supreme court trouble of his own waited until a certain justice was out of the way to enact on civil liberties and federal actions. Our supreme court is the best we have, but they are still men and subject to err, that is why our system is built on precedent so that decisions are based on a collection of decisions not just a man’s (n it can come to that w/a 5-4 decision) and within that collection the just interpretation wins out. This country is not rigid or static, we are always moving forward, there were times in history things we know now as unjust existed and we corrected it….and to suggest that correction is somehow not worthy of Founding American history is an inferior way of looking at American history plus you also neglect and disrespect our whole system of governing. Our founders devised a system that allows us to improve on society not remain the same.
The founding fathers had a vision of a free America, but like any child aspiring to be great he/she has to first develop character. This country could not and did not start perfect, we had to grow out of a few things, it’s called political evolution and we are not totally there yet, but with every decision that takes us to that more perfect union where everyone’s voice matters in the political process with respect to the law and our constitution, I will applaud every step toward that perfect union and claim it as my history.
One last thing about your statements concerning handouts. I’ll ask you one question if some stranger came to your door and they were naked and destitute, hungry, downtrodden and desperate — what would you do? I can tell you what my LORD would do and I can tell you what I would do, I would do everything within my power to help, I wouldn’t demand they work and wouldn’t ask why they are like that — I would just clothe and feed them. That is what I would do for my countrymen that is what I would do for my son. You would expect that person to fight for the country, die, if this nation were attacked — if you were old or disabled or even able to fight? You would expect that person u despise to fight for a nation and society in which you are free to look down at your fellow countrymen.
You are naive to say people during the Great Depression were looking for handouts. They weren’t. There was no work, no jobs, no money, no food. People that say things like what you say about the greatest generation — who built the foundation of the technology we have today, defeated the Axis of WWII, built our highway system, came out of the depression, rebuilt Europe — makes me sad. Not at you, but what politics has done to our great history — to make us think that we are all lazy and looking for hand outs. I never met someone like that. I don’t know about you.
28.
Bob | February 13, 2010 at 12:40 am
I think you misunderstood my term “handouts” to be pejorative. It was not. People needed support from the government, i.e., government handouts — that is not a negative thing. They were in need and sought help. Look through my post. At no point do I say that we shouldn’t help those in need. The original post was on the Constitution and on history. I wasn’t talking about social issues directly; I was talking about the Constitution and history.
We should definitely help those in need. It has always been within the power of the several states to do such things. The Great Depression (which my grandparents suffered greatly through) caused a tremendous social upheaval, and states weren’t doing enough. So a President stepped in and forced the courts to turn their backs on 150 years of precedent in the name of social change.
If you want to solve this problem in the CONSTITUTION, you change the Constitution. I think, given the social upheaval of the Great Depression, Constitutional changes could have been implemented in the way they were supposed to (i.e., through the Amendment process). They were not, and instead the President found a way around the separation of powers.
Anyhow, at no point did I say we do not have a moral duty to our citizens, and states have always been empowered to enact things that would assist in that duty. The federal government could as well, but it would make sense, given the HISTORY of this document and its interpretation (which the original post emphasized), to amend it rather than simply claim that it meant something else. That is disingenuous.
Basically, my post was on Constitutional law, which is sort of what the original post claimed to be about. Instead, you’ve responded with moral duty issues, which are important, but we can’t just pretend that the Constitution authorizes Congress to do something about that. (As a sidenote, legislating moral duty in general is very difficult — if I don’t help an elderly person across the street, I may be an awful and immoral person, but should I be fined or imprisoned for not doing so? Where do you draw the line?)
Finally, I’d just like to note all the stuff about whites and landowners and men, etc…. you do realize that that WASN’T TRUE AT THE TIME OF THE GREAT DEPRESSION, right? By that time, all people had gained suffrage (though admittedly, people were still being discriminated against, mostly blacks in the South and immigrants). All of that social change happened, despite the fact that most of the Constitution was originally interpreted the same way, i.e., federalism was strong and powers that weren’t enumerated weren’t allowed.
So how did other citizens get their rights? Through Constitutional AMENDMENTS. Not because we just woke up one day, realized that we had a moral duty to enfranchise other citizens, and then interpreted the Constitution to mean something different from what it originally said. No, we passed new amendments to justify those new views.
I’m all for social justice. I’m actually quite liberal and want much greater protections for a lot of things than are mentioned in the Constitution. But I also can read, and the Constitution doesn’t say these things, and no one who could read it interpreted it that way for the first 150 years.
You say that our nation has to grow. I completely agree. But we can’t grow by just pretending our founding documents and the Supreme Law of the Land just says something else. We should change it.
I know you’re probably not used to a person like me and assume that I must be a close-minded Republican. I’m not. I just don’t like the idea that some “right” that someone claims to find in the Constitution is only based on the interpretation of 9 people in a courtroom. It might sound great to say — oh well, it’s too hard to change the Constitution, so let’s just do this these easy way.
But you know what? That means in a couple decades, new people can come into power, new people can pack the courts, and suddenly all those rights that you hold dear can be TAKEN BACK through a simple court decision.
If you really believed in what you say about the importance of our good to our fellow citizens, you should be in favor of a Constitutional amendment to make that explicit, rather than the ridiculous attitude that we can just ignore the legal problems and pretend that the Constitution says something that it doesn’t, at least according to the only reasonable legal interpretation that held for 150 years.
29.
Bob | February 13, 2010 at 1:04 am
Oh, and by the way, for someone concerned about rights and our duty to help those in need, take a look at the major court decision that cemented the current Constitutional interpretation that Congress can basically do whatever it wants. It’s Wickard v. Filburn (1942).
Basically, Filburn was a farmer who grew food for his family and his animals. The government forced him to destroy that food. When he didn’t, he was fined. Why? Because, the federal government argued, Filburn’s actions of *not* buying wheat from his local farm store affected “interstate commerce” as defined in the Constitution as something that Congress had the power to regulate.
Now, there are various justifications for what the government was trying to do economically here, but do you really believe that someone who only grows food for the consumption of his own family should be forced to destroy it and buy food in order to support “interstate commerce”?
If you think that court decision sounds a little harsh, watch out, because much of your argument hangs on it. Overturn it, and various precedents start falling apart, and pretty soon you have no legal justification for your health care platform.
I, for one, don’t want my health care hanging on a court decision to force a farmer to destroy food he grew for his own family. Do you?
30.
keiron Jackman | February 13, 2010 at 10:50 pm
First of all Congress has the right to regulate commerce, secondly and most importantly the farmer violated the Agricultural Adjustment Act of 1938 which limited the amount of wheat a farmer could produce in order to stabilize the world market/price. The farmer you mentioned admitted he produced more wheat, what you call food in your comment, than was permitted. And by his admittance that he grew extra to feed his animals and family proved his actions had an affect on the market price of wheat because he would have otherwise purchased the wheat or taken out of his allotted amount, reducing the amount of wheat on the market which affects the price of wheat — halting manipulating of wheat prices was the sole purpose of the bill. And before you say anything else, if the court allowed such an exception what would happen when every farmer started doing that, it would have an exponential effect on the market supply/price, not to mention it would be a horribly wrong ruling because of its clear violation of the law.
So when you presented your scenario you presented it in such way as to convey that the farmer had no control over what he grew, and that he had no freedom to feed his family or animals. You failed to mention that the farmer could have grown the food, which was wheat, but was limited on the acreage of production. The farmer wanted to game the system by doing what he did. But I guess that was what the “Basically” was all about in your last post huh? So please don’t come on here and present misleading information, I usually don’t respond to comments but your statement had a specious ring to it, so I had to clarify.
31.
Tim Christopher | February 14, 2010 at 2:40 am
Never in this nation’s history has the commerce power been used to require a person who does nothing to engage in economic activity. Therefore, no decision of the Supreme Court has ever upheld such a claim of power. Such a regulation of a “class of inactivity” is of a wholly different kind than any at issue in the Court’s most expansive interpretations of the Commerce Clause. A mandate to enter into a contract with an insurance company would be the first use of the Commerce Clause to universally mandate an activity by all citizens of the United States.
Today, even voting is not constitutionally mandated. But, if this precedent is established, Congress would have the unlimited power to regulate, prohibit, or mandate any or all activities in the United States. Such a doctrine would abolish any limit on federal power and alter the fundamental relationship of the national government to the states and the people. For this reason it is highly doubtful that the Supreme Court will uphold this assertion of power.
32.
A.J. | February 14, 2010 at 2:59 am
Your post, Mr. Jackman, seems to be somewhat misleading as well. As another commentor wrote concerning your use of “our fathers” specifically as an example. Surely each of us can and often do interpret what we read differently, but it would not be very surprising if many readers had at least initially thought “founding fathers” were what you had meant, despite “forefathers” as in any prior generations preceding our own being the more likely meaning intented.
You have not convinced me of the Congress having the legitimate authority to regulate healthcare in the manner being proposed in current bills, wherein individuals would be forced to participate by purchasing a product or service.
33.
keiron Jackman | February 14, 2010 at 3:34 am
I am not trying to convince you. Just presenting a different perspective. But do you realize you are forced to pay for people that don’t pay for their medical treatment? What do you think about the constitutionality of a private company forcing you to pay for the service rendered to others on your dime? And concerning ‘our fathers’, it is all inclusive..meaning the generation before, your parents and what they voted for and even our Founding Fathers. It just means the individuals that had a hand in setting up institutions before today. I have a great respect for the generations that came before us, largely because I believe the in the principle that there is nothing new under the sun. So when we dismantle an institution we are disregarding the intellect and experience of those that put that institution in place. We in our ignorance may not see the value of it, and that may be because the institution we seek to destroy is doing its job, making us complacent. For instance we get rid of the EPA, we may believe based on today that companies will continue to bottle clean water, but it doesn’t speak to what can happen further down the road. The Glass-Steagall Act is an example of a policy that our fathers devised to prevent future financial meltdowns. We got rid of it in the 80s and 90s and guess what, the banks did the same thing that led to the depression, gamble with the people’s money and did not have the assets to cover the gamble in case of loss. I hope that clears things up.
34.
George | March 7, 2010 at 10:45 pm
Mr Keiron Jackman, I completely enjoyed reading sme of your comments in this blog.
You have a unique ability to look at a subject in debate and use Logic and Common Sense while discussing the pro’s and Con’s.
I hope that enough people find this blog and read your posts. They are wonderfully worded so that average people can understand the complex issues being discussed. I have signed up for your posts to be e-mailed to me. I look forward to reading and forwarding many of your great posts !
Keep on speaking Jackman
)
35.
Sam | February 16, 2010 at 3:22 am
The elephant in the room is that the constitution is a great document written by smart people. These men however did not have the foresight to see all of the needs of our society hundreds of years into the future. In general the constitution is a business pan. Every major corporation updates that plan periodically and evaluates it when market conditions change. I submit that the conditions have changed and its time for another constitutional convention.
36.
John Galt | February 12, 2010 at 4:39 pm
You say “The wisdom of our fathers created the Food & Drug Administration”. If, by “our fathers”, you mean “our Founding Fathers”, this statement (and others attributed to “our fathers”) is false. The FDA was created in the early 1900′s, over a century after our Founding Fathers’ time. If not our Founding Fathers, then you appear to be simply misleading your readers. Why?
But that’s the problem with this article… it bends reality by innuendo and false data and (a bit covertly, I must say) implies that the Constitution is really more in tune with the philosophy of Karl Marx than Thomas Jefferson.
You would do well to read “The Federalist Papers” and “The Anti-Federalist Papers”, the writings which are the context for our US Constitution. Those of us who have studied these and the Founding Fathers’ writings, see your interpretation of the Constitution following the contemporary flaws and misinterpretations that current politicians and lawmakers have been making for quite some time now. You cannot understand the intentions of our Constitution in contemporary terms and ideas. You have to weigh its nomenclature against definitions and philosophies of the historical times in which it was created.
37.
Sean | February 12, 2010 at 10:18 pm
We are on the verge of an economic collapse because the Congress of the United States has been using an unconstitutional interpretation the General Welfare provision to consume the wealth of the nation and drive us into debt. Their interpretation deletes words, disregards words, changes the meaning of words, and is absent of any of the limitations expressed by the Founders. In short, Congress (and Keiron) claims it has the unlimited power to tax and spend so long as it cites the General Welfare Clause as the constitutional authority for the legislation.
Finally, the FAA is not a “social institution” it is a regulatory agency to control air traffic.
38.
jimmy bonus | February 14, 2010 at 2:40 am
Everything should be privatized except the jails and courts. Traffic jams are caused by our socialized transportation: the government controls the roads! Why? WHY!
39.
Matt | February 14, 2010 at 2:48 am
The examples you give are all examples of horribly, horribly mismanaged programs. The FDA is horrible at it’s professed job. Hundreds of people die regularly from eating toxic foods, foods that it is the FDA’s job to protect them from. And I have two words on FEMA: Hurricane Katrina.
The fact is all regulations are lobbied for by the industries they regulate in order to reduce competition. A quick study off the history of railroads illustrates this beautifully. Murray Rothbard called the idea that these commissions were originally created to protect people, and only later taken over by corporations the “Ralph Nader myth.” History shows that all regulations are created to benefit those they regulate.
40.
keiron Jackman | February 14, 2010 at 2:58 am
You show me a perfect company, and I will tell you 100 reasons why it’s not. Never once have I stated that these institutions were perfect, however, with these institutions the people can affect change through vote or petitioning congress. We don’t have that privilege with private companies — take a number or call customer service see how far that gets you. Though the EPA might not work perfectly, it’s the reason you are not drinking contaminated water, too bad I can’t say that about kool aide.
41.
Hawley | February 27, 2010 at 7:24 pm
No actually history shows the exact opposite. The FDA was instrumental in getting poisenous foods off the shelves. FEEMA was very effective, until the neo-cons turned it into a joke. We had eight ears of an administration which deliberately made governement as expensive and inefficient as possible so they could argue taht government was expensive and inefficient. We were protected from banking excesses for ffityyears, then conservatives decide it was time to de-regulate. And how about de-regulating airlines? Remeber how that was supposed to drive down costs and raise efficiency? It is true that private bussinesses do somethings better then the governemnt, but it is also true that Government does soem things far better then private bussiness.
42.
Scotty | February 14, 2010 at 12:29 pm
Opt out of mandatory car insurance by not having a car? Come on guys. You know that’s simply NOT practicable in a large part of the US.
Unless you want the country to regress into an Amish-like existance.
Luddites!
43.
Interesting argument but..... | February 14, 2010 at 2:46 pm
I still believe that congress is violating the Constitution trying to force this on Americans.
Americans are currently picking up the bill for anyone who doesn’t pay, as our rates go up, but we pay through other ways already.
Now I would like to point out a couple of things.
neighbor 1: No insurance. Only goes to the doctor when the family is really sick. No abuse here.
neighbor 2: State insurance. Goes to the emergency room for a bruise, sore throat and cough, minor things. (Goes to the ER!) I confronted this neighbor and said, in the end my taxes are paying for your waste. He said that he didn’t care and he appreciated my support.
Constitutionality is a legitimate gripe and in this case I hope that argument prevails. It is simple, a national health insurance plan will be so costly to the US because of stupid people like neighbor 2. Abuse is a guarantee. And our federal government is not capable of handling it. (ie…. current waste in every other program that it controls, like medicare)
Regulate the current system, allow for more competition, and get tort reform. Oops, that’s right the democrats are lawyers and hey they wouldn’t want to affect their flow of income.
I cannot deny that the current system needs to be tweeked. It is not perfect. But free enterprise can save it, if the laws were in place to do that, but that unfortunately does not fit the agenda of some people. Plain and simple.
44.
Sam | February 16, 2010 at 3:14 am
I offer a more likely scenario to your Hypothetical. Neighbor number one with no insurance children get really sick and can not afford the treatment. Because we are a civilized country we do not allow the children to die and the doctor and hospital is forced to treat them. Who pays for their treatment? hmmmm lets think. Guess who all of us. Through higher costs for health care the doctors pass the cost along to paying customers, or The cost are payed through government programs funded by taxes.
The real truth is if you want to avoid the shared cost of health care you need to be prepared to let people die. If you are ready to do that fine. I will personally respect your position. But just stand up and say it. Don’t hide from it or deny the repercussions of your actions
45.
rspoltore2 | February 14, 2010 at 4:15 pm
This article misses the true legal constitutional issue that is says it address. Never before in this country has the federal government been able to tell a group of people who do not want to do an action that they are required to do that action.
So the government can say you must have a driver’s license, if you want to drive. They can say if you want to sell grain you can only sell x amount. However, this is the first time the government has said because you are a live you must do X.
the argument that the government can tax what ever it wants is true, however this is not a tax but a fine imposed on a citizen who does not have insurance and not covered by the 16th amendment. it is also not covered by the interstate commerce cause as the article below describes.
http://www.heritage.org/research/legalissues/lm0049.cfm
46.
keiron Jackman | February 14, 2010 at 8:52 pm
Yea you are right some ppl never drive, never fly, or use gasoline etc. But sooner or later everyone goes to the hospital. No one never goes. Also hospitals can’t refuse urgent care, that not in the constitution either, therefore it is a right similar all congress is doing is making people pay for that privilege, which is to receive treatment..and by paying for this we develop a more efficient way of handling costs. That’s it. It’s not too complicated. If you collapsed in front of a private hospital they have to treat you, even though its not in the constitution, So if you disagree with that maybe you can propose legislation that will exempt you from being treated if you should need it except for if you call ahead and you have insurance to pay for it.
47.
AMR | February 15, 2010 at 10:37 pm
Thanks for the article, Mr. Jackman. “Life, Liberty and the pursuit of Happiness”. That’s all the constitutional basis I need to support universal health reform. That plus study after study that shows that we are already paying for the uninsured through our tax dollars and insurance premiums but the care they get is episodic and ineffective. It’s a drag on our economy and on our souls and, as a result, we have become a 3rd rate country in terms of health outcomes. Why would any right thinking person want to perpetuate this?
The Constitution tells us how to think not what to think. Your example of Lincoln and his determination to carry out the mandates inherent in the constitution and abolish slavery is right on point. Our FOUNDING fathers set out the principles and years later, our FOREFATHER, Lincoln, perfected their thinking and applied the principles to right a wrong within the context of the times.
48.
Victor Barney | February 17, 2010 at 7:25 pm
The devil can be in the details! I just saw an episode on Gunsmoke where a father kept is boy out of school, ended up hitting the teacher, who filed charges and lost, but the father now recognized the truth that his boy should be educated? How often does that occur? Same manner with most of these posts, they all seem well intentioned, but in the real world we have to be careful with well intentioned. Germany voted in Hitler too, and he was evil, but apparently Lenin, Stalin, Mao Tse Tung of China, on and on weren’t, each of which murdered more people then Hitler! Not to mention the progressives have used our Gunsmoke school system to spread progressive/Marxist thought to the unaware, like Germany believed Hitler. In summary, is “free enterprise” actually as successful as we think, history says no, but perhaps at the price of tyranny? What’s more important, having free medication or a job? Everything has a cost and we have to be careful that the load doesn’t break the camels back!
49.
AMR | February 18, 2010 at 12:00 pm
Ah, yes, the polls. “The polling data reveals……” You want polls? Here are some…….22 polls, in fact. A lot of them are quite recent:
http://www.pollingreport.com/health.htm
You decide for yourselves. Here are my takeaways. I admit up front that I am biased in favor of a public option so I’ll try to keep the spin down and to the point:
- Health care reform has lost support over time; poll respondents are less happy w/ Obama’s handling of the issue now than they were before; and even less happy w/ the Republican’s.
- They are not crazy about the bills proposed by Congress. When given the chance to be specific, it’s the Senate bill (the watered down one) without the public option that they don’t like.
- Every time a poll asked them to rate the addition of a public option, more approved than disapproved.
- Every time a poll asked them to rate higher taxes for those making over $250 K to pay help pay for reform measures, they say yes.
50.
Hawley | February 27, 2010 at 7:57 pm
I came to this article rather late, and have read through many thoughtful posts in this stream. First the article itself wa well written and made some good points. I wish the lively dbate that went on in the replies was going on in Washington today.
A frequent counter-point to the articel seesm to be that the Constitution does not specifically state that the government can require peolpe to have health care, and that there is no general precedent for this.
First my understanding is that failure to have health insurance would not lead to a prison sentence, but rather a fine. In that sense, mush like traffic offences are not crimes, this does not criminalize people for not getting health care. Therefore the comments about arrests and prision don’t apply.
More importantly, there IS a precedent that applies. It is the selective service act. The Constitution does not specifically allow for a draft, or even registration as mandated under the Selective Service Act(s). You don’t have to want to drive a car, and the Act doesn’t apply only if you meet income threasholds. All you need to do is be alive and in the U.S. (I believe it even applies to resident aliens.) The Act applies to you whether you want it to or not, and a violation is punisible by a substantial term of imprisonment (although no one has been prosecuted since 1986).
Selective Service registration and the draft have been applied traditionally only to men of a certain age, but that is a choice of Congress. The government has the power to include women in the act and raise or lower the eligible age. When the draft does kick in, the federal government decides how long you serve for, and when that time limit is reached can extend it.
Selective Service Acts, by various names have been challenged in the courts on numerous occassions. Every time the Court in question, including the U.S. Supreme Court has up -held the validity of the Act in question and its specific provisions. Included in these cases were challenges based on the thriteenth and fifth Amendments, states rights and due process. every one of these challenges was definitively rejected.
All this based on the general power of the federal government to “provide for the common defense”.
So the Constitutional question is: Does a governement that has the power to: force me to register for a draft I don’t want to register for, and, the power to send me to the other side of the world, where I don’t want to go, to kill people I don’t want to kill, and to perhaps be killed by them, which I don’t want, for however long it pleases to send me, whenever it decides to send me also how the power to give me a ticket if I choose not to have health insurance?
I think the answer to that one is fairly clear whether you think it’s agood idea or not..
51.
Nick | March 5, 2010 at 9:23 pm
I believe it comes down to a social decision if healthcare is a human right or not. This is not a simple question, especially when one takes into account the varied types of healthcare (should check-ups be covered while experimental cancer treatments are not?).
Ultimately, this was decided a VERY long time ago when Government(s) chose to honor the hippocratic oath. Anyone arguing the unconstitutional nature of requiring people to belong to “a system that ensures payment”, must also argue the unconstitutional nature of forcing a doctor to render services.
And maybe they are both unconstitutional… I am not a constitutional scholar. But common sense tells me that if we have decreed that Doctors are legally required to attend to sick or injured people, the other side of that coin should make sick or injured people legally required to belong to a system that ensures payment of services.
Or we could eliminate the hippocratic oath… but I don’t really support that either.
52.
AMR | March 6, 2010 at 2:17 pm
Nick, you did come late to the discussion but you made a great point….wish I’d thought of it. You’ve exposed the inherent contradiction in our health care philosophy: lofty ideals for health care providers but not for the rest of us. Those who emphasize the need for more accountability really don’t want to assume ultimate accountability (really don’t want to put their money where their mouths are) . Platitudes like the Hippocratic oath for them are really only……well, platitudes. I, like you, am not willing to eliminate my support for the Hippocratic oath. I am, therefore, willing to support universal health care with my tax dollars.