Constitutional Moment of the Day
Please, allow me the liberty, so to speak, to replace the usual “Constitutional” moment with an “Independence” moment of the day. The following is so beautiful and lucid it requires no further commentary beyond: enjoy and appreciate the full meaning of the words.
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
Quote of the Day
“Government is instituted for the common good; for the protection, safety, prosperity, and happiness of the people; and not for profit, honor, or private interest of any one man, family, or class of men; therefore, the people alone have an incontestable, unalienable, and indefeasible right to institute government; and to reform, alter, or totally change the same, when their protection, safety, prosperity, and happiness require it.”
- John Adams, Thoughts on Government, 1776
It is in our hands.
A Long Train of Abuses and Usurpations
Obama recently signed a health care bill into law against the will of a majority of Americans. The law includes the hiring of over 16,000 new IRS agents, the collecting of a multitude of new taxes and fines, the training of physicians with the military, the forcing of Americans to buy insurance under penalty of fines and prosecution, the placing of bureaucrats in the decision making process of doctors.
Obama has appointed more "czars" (most of which did not require confirmation by the Senate) than any other administration. By my count (and the counts vary) there have been 25 czars appointed by President Obama or his department secretaries that never went through the rigor of a Senate confirmation (8 others were confirmed by the Senate and two are holdovers from the Bush Administration). Among these unelected, unconfirmed czars are: border czar (How’s that working out?), compensation/pay czar, climate czar, auto czar, auto recovery czar, autoworkers czar (How many auto czars can you fit in a VW?), Afghanistan/Pakistan czar (How’s that one working out?), domestic violence czar, Great Lakes czar (I’m not making this stuff up.), health czar (of course), Iran czar (How’s that working out?), urban affairs czar, and, I’m not kidding, a big-picture economic czar. In fairness, President Bush appointed 23 unconfirmed czars, but he was not a Conservative. In comparison, President Clinton appointed six czars (Did you ever think you would look at the Clinton Years as the “Good Old Days?”) and President Ronald Reagan (Don’t you just miss him.) appointed over his eight years in office a grand total of one czar.
At this moment, hundreds of thousands of census workers are spreading out across the country forcing Americans to provide personal information, again under penalty of fines and prosecution. Apparently, arrested suspects have the right to remain silent, but everyday, law-abiding citizens in their own homes do not have that same luxury. So, if you refuse to answer the questions, then you continue to refuse to pay the fines, when they come to arrest you, you can remain silent and not answer their questions.
Obama has taken over private financial institutions, and is attempting to dictate how they run their businesses and pay their executives (see compensation/pay czar above), private auto manufacturers, and the previously private student loan business.
Obama has signed an executive order allowing the EPA to regulate a gas (carbon dioxide) which is so "dangerous" that it is an essential element in the process (photosynthesis) in which plants make their food and produce oxygen. It is so “harmful” that most living creatures expel it from their bodies during normal respiration. These EPA regulations will affect almost every industry in America, as well as all Americans, without any debate or legislation passed by Congress.
Now, in 1776, Thomas Jefferson enumerated in the Declaration of Independence what he called "a long train of abuses and usurpations" committed by the King of Great Britain. Among them was:
"He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance."
Sound familiar??? Isn't it time for a new Declaration of Independence??
It’s not too late.
Next time . . . the literal horror of big government.
Friday, April 23, 2010
Thursday, April 15, 2010
Happy Tax Day!
Constitutional Moment of the Day
In honor of “Tax Day,” I present for your consideration . . .
Amendment XVI
The 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.
Just 30 words that have done more to transfer power away from the people and states and to the federal government than any other arrangement of a similar number of words anywhere else in the Constitution. More on this later.
Quote of the Day
“An unlimited power to tax involves, necessarily, a power to destroy; because there is a limit beyond which no institution and no property can bear taxation.”
- John Marshall, McCullough v. Maryland, 1819
The Horrors of 1913
Although today has popularly been proclaimed “Tax Day,” in reality, every day is “Tax Day.” Every day, hour, minute that you work taxes are being withheld from your hard earned income. Every time you go shopping taxes are added to the cost of your purchase. You pay taxes when you pay your utility and phone bill. Property is taxed, capital gains are taxed, dividends are taxed, inheritance is taxed, even “sin” is taxed.
What does this have to do with the year 1913? As you might have guessed the above-mentioned amendment to the Constitution was adopted in 1913. The Sixteenth Amendment expanded Congress’s power to “lay and collect Taxes, Duties, Imposts and Excises,” and nullified its expressed limitation that “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.” Congress was now able to tax income “from whatever source derived” and was not required to assign those taxes among the several states based on population. This is an almost unrestrained power to tax. Do you really think that is what the Framers had in mind? Wasn’t the Revolutionary War fought, in large part, against excessive and unfair taxation by the British Crown?
The federal income tax allowed by the 16th Amendment tapped a vein of almost unlimited revenue that directly fueled the astronomical expansion, and intrusion, of the federal government over the rest of the century and which continues to this day; like some parasitic creature that attaches itself to an unwilling or unsuspecting host and eventually consumes it. It is no accident that the federal government remained relatively small for the 126 years prior to the Sixteenth Amendment and has subsequently exploded in the 97 years that have followed. The truly horrific aspect of all this is that the revenue supplied by the national income tax is not enough to satisfy the voracious appetite of a bloated federal government, and it must assuage that hunger by borrowing money from the Chinese and Japanese. Now even this is not enough. Last week the Obama administration proposed a national sales tax called the Value Added Tax. It is yet another vein to be opened and lapped with vigor by the uncontrollable beast.
But, the Sixteenth Amendment was only the first atrocity committed against the American people that fateful year. For the first time since the adoption of the Bill of Rights in 1791, two amendments to the Constitution were ratified in the same calendar year. Which brings us to . . .
Another Constitutional Moment of the Day
Amendment XVII
The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures. (bold added)
The horror of this change to the Constitution may not be immediately apparent. For over 120 years prior to this amendment, Senators were chosen by the legislature of a state and not elected directly by the voters. How, you might ask, is it a bad thing, let alone horrific, to expand democracy by allowing the citizens of a state to popularly elect their own senators?
The beauty, some might rightfully say, the brilliance, of the U. S. Constitution is the system of checks and balances erected by the Framers. These were men who had recently fought a long and costly war against an overpowering central government (Great Britain), and had experienced the failings of a week national government under the Articles of Confederation. They strived to maintain a delicate balance not only between the states and the federal government, but also between the three branches of the central government. They understood all too well the dangers of too much power in the hands of one branch of government, or in the federal government as a whole, at the expense of the states. James Madison and his brethren did not decide on a whim that Senators should serve for 6 years (a third of all senators being elected every two years), House Representatives for two years, the president for four, and the Supreme Court Justices for life. This was designed as a check against the entire government being replaced during one election cycle by a mercurial electorate. House members, it was thought, should be directly elected by the people in hopes that congressmen would truly represent the wishes of their constituents. Likewise, Senators chosen by state legislatures would, by design, be beholden to the state governments that selected them rather than the federal government. If the legislators of a state felt that a senator was not appropriately protecting the interests of the state, they could replace him after six years. Simply put, congressmen were meant to represent the people, senators to represent the states. Senators were put there as the states’ watchdogs against federal encroachment in their affairs. With the ratification of the Seventeenth Amendment, a critically important barrier restraining the federal government fell, and, like the amendment that preceded it, helped pave the way for the unprecedented federal expansion seen in the last century.
It’s not too late.
Next time . . . “a long train of abuses.”
In honor of “Tax Day,” I present for your consideration . . .
Amendment XVI
The 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.
Just 30 words that have done more to transfer power away from the people and states and to the federal government than any other arrangement of a similar number of words anywhere else in the Constitution. More on this later.
Quote of the Day
“An unlimited power to tax involves, necessarily, a power to destroy; because there is a limit beyond which no institution and no property can bear taxation.”
- John Marshall, McCullough v. Maryland, 1819
The Horrors of 1913
Although today has popularly been proclaimed “Tax Day,” in reality, every day is “Tax Day.” Every day, hour, minute that you work taxes are being withheld from your hard earned income. Every time you go shopping taxes are added to the cost of your purchase. You pay taxes when you pay your utility and phone bill. Property is taxed, capital gains are taxed, dividends are taxed, inheritance is taxed, even “sin” is taxed.
What does this have to do with the year 1913? As you might have guessed the above-mentioned amendment to the Constitution was adopted in 1913. The Sixteenth Amendment expanded Congress’s power to “lay and collect Taxes, Duties, Imposts and Excises,” and nullified its expressed limitation that “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.” Congress was now able to tax income “from whatever source derived” and was not required to assign those taxes among the several states based on population. This is an almost unrestrained power to tax. Do you really think that is what the Framers had in mind? Wasn’t the Revolutionary War fought, in large part, against excessive and unfair taxation by the British Crown?
The federal income tax allowed by the 16th Amendment tapped a vein of almost unlimited revenue that directly fueled the astronomical expansion, and intrusion, of the federal government over the rest of the century and which continues to this day; like some parasitic creature that attaches itself to an unwilling or unsuspecting host and eventually consumes it. It is no accident that the federal government remained relatively small for the 126 years prior to the Sixteenth Amendment and has subsequently exploded in the 97 years that have followed. The truly horrific aspect of all this is that the revenue supplied by the national income tax is not enough to satisfy the voracious appetite of a bloated federal government, and it must assuage that hunger by borrowing money from the Chinese and Japanese. Now even this is not enough. Last week the Obama administration proposed a national sales tax called the Value Added Tax. It is yet another vein to be opened and lapped with vigor by the uncontrollable beast.
But, the Sixteenth Amendment was only the first atrocity committed against the American people that fateful year. For the first time since the adoption of the Bill of Rights in 1791, two amendments to the Constitution were ratified in the same calendar year. Which brings us to . . .
Another Constitutional Moment of the Day
Amendment XVII
The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures. (bold added)
The horror of this change to the Constitution may not be immediately apparent. For over 120 years prior to this amendment, Senators were chosen by the legislature of a state and not elected directly by the voters. How, you might ask, is it a bad thing, let alone horrific, to expand democracy by allowing the citizens of a state to popularly elect their own senators?
The beauty, some might rightfully say, the brilliance, of the U. S. Constitution is the system of checks and balances erected by the Framers. These were men who had recently fought a long and costly war against an overpowering central government (Great Britain), and had experienced the failings of a week national government under the Articles of Confederation. They strived to maintain a delicate balance not only between the states and the federal government, but also between the three branches of the central government. They understood all too well the dangers of too much power in the hands of one branch of government, or in the federal government as a whole, at the expense of the states. James Madison and his brethren did not decide on a whim that Senators should serve for 6 years (a third of all senators being elected every two years), House Representatives for two years, the president for four, and the Supreme Court Justices for life. This was designed as a check against the entire government being replaced during one election cycle by a mercurial electorate. House members, it was thought, should be directly elected by the people in hopes that congressmen would truly represent the wishes of their constituents. Likewise, Senators chosen by state legislatures would, by design, be beholden to the state governments that selected them rather than the federal government. If the legislators of a state felt that a senator was not appropriately protecting the interests of the state, they could replace him after six years. Simply put, congressmen were meant to represent the people, senators to represent the states. Senators were put there as the states’ watchdogs against federal encroachment in their affairs. With the ratification of the Seventeenth Amendment, a critically important barrier restraining the federal government fell, and, like the amendment that preceded it, helped pave the way for the unprecedented federal expansion seen in the last century.
It’s not too late.
Next time . . . “a long train of abuses.”
Monday, April 12, 2010
What have the courts said?
Constitutional Moment of the Day
Of the three branches of the federal government (legislative, executive, judicial), the judicial branch is probably the least understood. The entire article concerning judicial powers (Article III) consists of only 377 words. Here are some of those words.
Article III, Section 1
The judicial Power of the United States shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish . . .
Article III, Section 2
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;-- between a State and Citizens of another State,--between Citizens of different States,--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
The Eleventh Amendment supersedes the bolded judicial power.
Quote of the Day
“The constitution of the United States is to receive a reasonable interpretation of its language, and its powers, keeping in view the objects and purposes, for which those powers were conferred. By a reasonable interpretation, we mean, that in case the words are susceptible of two different senses, the one strict, the other more enlarged, that should be adopted, which is most consonant with the apparent objects and intent of the Constitution.”
- Joseph Story, Commentaries on the Constitution, 1833
Unfortunately, the historical landscape of the Supreme Court is littered with rulings that are not “consonant with the apparent objects and intents of the Constitution.”
A Reasoned and Unemotional Case Against the Constitutionality of the Health Care Reform Law
In previous installments on the constitutionality of the health care reform law, I discussed my reasoning based on the Constitution and the words of the Framers of that historic guardian of liberty. The constitutionality of the law under discussion, however, will ultimately be decided in the Supreme Court. So, let’s look to previous cases to gain some insight as to the law’s constitutionality.
What the courts have said:
Proponents of the current health care reform law defend its constitutionality by pointing to the commerce clause of the Constitution. The third clause of Article I, Section 8 of the Constitution states, “The Congress shall have Power To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The questions then are, Is health care/insurance commerce, and Can it be regulated by the federal government? There have been hundreds of Supreme Court cases involving the commerce clause. Although most do not deal directly with the issue of health care, relevant dicta (comments by a judge in a decision or ruling which are not required to reach the decision, but may state a related legal principle) can be found in several historic rulings.
One of the first cases involving the commerce clause was Gibbons v. Ogden (1824). In delivering the opinion of the court, Chief Justice John Marshall actually broadened the definition of commerce giving more regulatory power to the federal government. However, in his decision he specifically defined the areas of regulatory legislation which should remain totally under the authority of a state. When discussing state inspection laws he said:
They form a portion of that immense mass of legislation, which embraces everything within the territory of a state, not surrendered to a general government; all of which can be most advantageously exercised by the states themselves. Inspection laws, can be most advantageously exercised by, quarantine laws, health laws of every description (bold added), as well as laws for regulating the internal commerce of a state, and those which respect turnpike roads, ferries, etc., are component parts of this mass.
No direct general power over these objects is granted to congress, and, consequently remain subject to state legislation.
And, this was from a man who was a vocal proponent of a strong federal (general) government.
Four years later in Willson v. Blackbird Creek Marsh Co. Chief Justice Marshall again addressed the issue of community health, this time siding with a state’s (Delaware) right to regulate navigation (and thus commerce) of a stream by building a dam.
The value of the property on its banks must be enhanced by excluding the water from the marsh, and the health of the inhabitants probably improved. Measures calculated to produce these objects, provided they do not come into collision with the powers of the general government, are undoubtedly within those which are reserved to the states.(bold added)
Once again the high court stressed that health concerns fall within the realm of the states.
But, what about insurance, can it be regulated by the federal government, or is it also under the purview of the states? The waters here are murkier.
In Paul v. State of Virginia (1868), a unanimous decision of the court said of insurance policies:
The policies are simple contracts of indemnity against loss by fire, entered into between the corporations and the assured, for a consideration paid by the latter. These contracts are not articles of commerce in any proper meaning of the word (bold added). They are not subjects of trade and barter offered in the market as something having an existence and value independent of the parties to them. They are not commodities to be shipped or forwarded from one State to another, and then put up for sale.
The precedent, that insurance is not commerce, was upheld and even broadened for over 75 years until it was overturned by United States v. South-Eastern Underwriters Association (1944). Justice Black concluded that even though the contracts (policies) may be local in nature, premiums collected from policyholders flow from many states to a company’s financial center, while claim payments flow back to the policyholders, crossing state lines, thus making insurance interstate commerce and therefore open to Congressional regulations.
But, are health services considered “commerce” and thus able to be regulated by Congress? Yes, according to a Supreme Court ruling in American Medical Association v. United States (1943). The Court affirmed a ruling by the Court of Appeals that “the restraint of trade prohibited by the statute (Sherman Antitrust Act) may extend both to medical practice and to the operations of Group Health (a nonprofit medical care provider),” even though Group Health served only its own members (parentheses added).
However, in 1952, the Supreme Court refused to overrule a District Court decision that found, "The sale of medical services, by Doctor Sponsored Organizations, as conducted within the State of Oregon, is not trade or commerce within the meaning of Section 1 of the Sherman Anti-Trust Law, nor is it commerce within the meaning of the constitutional grant of power to Congress `To regulate Commerce . . . among the several States.'" (United States v. Oregon Medical Society) In delivering the opinion of the Court, Justice Jackson tries to clarify the above-cited 1943 decision, “American Medical Assn. v. United States, does not stand for the proposition that furnishing of prepaid medical care on a local plane is interstate commerce. (bold added)” That seems definitive. If you go to your local doctor, hospital, or clinic and pay with a prepaid insurance policy you are not engaging in interstate commerce, and therefore the transaction cannot be regulated by Congress.
I told you the waters are murky. Throughout the long history of the Supreme Court, rulings concerning the applicability of the commerce clause have bounced back and forth like a ping-pong ball batted about by alternating majorities of nine black-robed men and women.
However, it seems that the farther removed we become from the historical context in which the Constitution was written, the more the original intent of the Framers becomes corrupted, and we are unable to immediately recognize the unconstitutionality of a law. I believe this is exactly what has happened with the current health care reform law. James Madison, the Father of the Constitution, has passed down a warning for all those who are willing to listen.
“Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government.” – James Madison
Are you listening?
It’s not too late.
Next time . . . Happy Tax Day!!
Of the three branches of the federal government (legislative, executive, judicial), the judicial branch is probably the least understood. The entire article concerning judicial powers (Article III) consists of only 377 words. Here are some of those words.
Article III, Section 1
The judicial Power of the United States shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish . . .
Article III, Section 2
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;-- between a State and Citizens of another State,--between Citizens of different States,--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
The Eleventh Amendment supersedes the bolded judicial power.
Quote of the Day
“The constitution of the United States is to receive a reasonable interpretation of its language, and its powers, keeping in view the objects and purposes, for which those powers were conferred. By a reasonable interpretation, we mean, that in case the words are susceptible of two different senses, the one strict, the other more enlarged, that should be adopted, which is most consonant with the apparent objects and intent of the Constitution.”
- Joseph Story, Commentaries on the Constitution, 1833
Unfortunately, the historical landscape of the Supreme Court is littered with rulings that are not “consonant with the apparent objects and intents of the Constitution.”
A Reasoned and Unemotional Case Against the Constitutionality of the Health Care Reform Law
In previous installments on the constitutionality of the health care reform law, I discussed my reasoning based on the Constitution and the words of the Framers of that historic guardian of liberty. The constitutionality of the law under discussion, however, will ultimately be decided in the Supreme Court. So, let’s look to previous cases to gain some insight as to the law’s constitutionality.
What the courts have said:
Proponents of the current health care reform law defend its constitutionality by pointing to the commerce clause of the Constitution. The third clause of Article I, Section 8 of the Constitution states, “The Congress shall have Power To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The questions then are, Is health care/insurance commerce, and Can it be regulated by the federal government? There have been hundreds of Supreme Court cases involving the commerce clause. Although most do not deal directly with the issue of health care, relevant dicta (comments by a judge in a decision or ruling which are not required to reach the decision, but may state a related legal principle) can be found in several historic rulings.
One of the first cases involving the commerce clause was Gibbons v. Ogden (1824). In delivering the opinion of the court, Chief Justice John Marshall actually broadened the definition of commerce giving more regulatory power to the federal government. However, in his decision he specifically defined the areas of regulatory legislation which should remain totally under the authority of a state. When discussing state inspection laws he said:
They form a portion of that immense mass of legislation, which embraces everything within the territory of a state, not surrendered to a general government; all of which can be most advantageously exercised by the states themselves. Inspection laws, can be most advantageously exercised by, quarantine laws, health laws of every description (bold added), as well as laws for regulating the internal commerce of a state, and those which respect turnpike roads, ferries, etc., are component parts of this mass.
No direct general power over these objects is granted to congress, and, consequently remain subject to state legislation.
And, this was from a man who was a vocal proponent of a strong federal (general) government.
Four years later in Willson v. Blackbird Creek Marsh Co. Chief Justice Marshall again addressed the issue of community health, this time siding with a state’s (Delaware) right to regulate navigation (and thus commerce) of a stream by building a dam.
The value of the property on its banks must be enhanced by excluding the water from the marsh, and the health of the inhabitants probably improved. Measures calculated to produce these objects, provided they do not come into collision with the powers of the general government, are undoubtedly within those which are reserved to the states.(bold added)
Once again the high court stressed that health concerns fall within the realm of the states.
But, what about insurance, can it be regulated by the federal government, or is it also under the purview of the states? The waters here are murkier.
In Paul v. State of Virginia (1868), a unanimous decision of the court said of insurance policies:
The policies are simple contracts of indemnity against loss by fire, entered into between the corporations and the assured, for a consideration paid by the latter. These contracts are not articles of commerce in any proper meaning of the word (bold added). They are not subjects of trade and barter offered in the market as something having an existence and value independent of the parties to them. They are not commodities to be shipped or forwarded from one State to another, and then put up for sale.
The precedent, that insurance is not commerce, was upheld and even broadened for over 75 years until it was overturned by United States v. South-Eastern Underwriters Association (1944). Justice Black concluded that even though the contracts (policies) may be local in nature, premiums collected from policyholders flow from many states to a company’s financial center, while claim payments flow back to the policyholders, crossing state lines, thus making insurance interstate commerce and therefore open to Congressional regulations.
But, are health services considered “commerce” and thus able to be regulated by Congress? Yes, according to a Supreme Court ruling in American Medical Association v. United States (1943). The Court affirmed a ruling by the Court of Appeals that “the restraint of trade prohibited by the statute (Sherman Antitrust Act) may extend both to medical practice and to the operations of Group Health (a nonprofit medical care provider),” even though Group Health served only its own members (parentheses added).
However, in 1952, the Supreme Court refused to overrule a District Court decision that found, "The sale of medical services, by Doctor Sponsored Organizations, as conducted within the State of Oregon, is not trade or commerce within the meaning of Section 1 of the Sherman Anti-Trust Law, nor is it commerce within the meaning of the constitutional grant of power to Congress `To regulate Commerce . . . among the several States.'" (United States v. Oregon Medical Society) In delivering the opinion of the Court, Justice Jackson tries to clarify the above-cited 1943 decision, “American Medical Assn. v. United States, does not stand for the proposition that furnishing of prepaid medical care on a local plane is interstate commerce. (bold added)” That seems definitive. If you go to your local doctor, hospital, or clinic and pay with a prepaid insurance policy you are not engaging in interstate commerce, and therefore the transaction cannot be regulated by Congress.
I told you the waters are murky. Throughout the long history of the Supreme Court, rulings concerning the applicability of the commerce clause have bounced back and forth like a ping-pong ball batted about by alternating majorities of nine black-robed men and women.
However, it seems that the farther removed we become from the historical context in which the Constitution was written, the more the original intent of the Framers becomes corrupted, and we are unable to immediately recognize the unconstitutionality of a law. I believe this is exactly what has happened with the current health care reform law. James Madison, the Father of the Constitution, has passed down a warning for all those who are willing to listen.
“Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government.” – James Madison
Are you listening?
It’s not too late.
Next time . . . Happy Tax Day!!
Saturday, April 10, 2010
What did the Framers say?
Constitutional Moment of the Day
Article VII
Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth In witness whereof We have hereunto subscribed our Names,
G°. Washington Presidt and deputy from Virginia
Delaware Geo: ReadGunning Bedford jun John Dickinson Richard Bassett Jaco: Broom
Maryland James McHenry Dan of St Thos. Jenifer Danl. Carroll
Virginia John Blair James Madison Jr.
North Carolina Wm. Blount Richd. Dobbs Spaight Hu Williamson
South Carolina J. Rutledge Charles Cotesworth Pinckney Charles Pinckney Pierce Butler
Georgia William Few Abr Baldwin
New Hampshire John Langdon Nicholas Gilman
Massachusetts Nathaniel Gorham Rufus King
Connecticut Wm. Saml. Johnson Roger Sherman
New York Alexander Hamilton
New Jersey Wil: Livingston David Brearley Wm. Paterson Jona: Dayton
Pennsylvania B Franklin Thomas Mifflin Robt. Morris Geo. Clymer Thos. FitzSimons Jared Ingersoll James Wilson Gouv Morris
These are some of the most important and least remembered names in American history. There are probably but a handful that you recognize. Most have been swallowed up by the passing years. In all, 70 men were appointed from every state, except Rhode Island, as delegates to the Constitutional Convention in Philadelphia in the summer of 1787. Of the 70 men appointed, 55 actually attended the Convention (Thomas Jefferson, John Adams, Samuel Adams, John Hancock, and Patrick Henry were unable to attend) but only 39 signed the document. Almost all had taken part in the Revolution, 29 of them fighting in the Continental Army. Eight signed the Declaration of Independence eleven years earlier, and two (Roger Sherman and Robert Morris) affixed their names to the Declaration, the Articles of Confederation, and the Constitution. They were lawyers and businessmen, farmers and ministers, scientists and physicians. Some, like Franklin, were self-taught and received very little formal education, while others graduated from college and a few held advanced degrees.
Take a moment to read their names. They deserve it. These are the Framers of the Constitution. These are among your Founding Fathers.
Quote of the Day
“The first and governing maxim in the interpretation of a statute is to discover the meaning of those who made it.”
- James Wilson, Of the Study of Law in the United States, Circa 1790
"On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."
- Thomas Jefferson, letter to Justice William Johnson, June 12, 1823
A Reasoned and Unemotional Case Against the Constitutionality of the Health Care Reform Law
Last time, I outlined why I feel that the health care reform law recently passed by Congress and signed by President Obama is unconstitutional based on, oddly enough, what the Constitution actually says and doesn’t say. But, what was the original intent of the authors of the Constitution?
What the Framers said:
Maybe I have misinterpreted the Framers’ intent. Maybe after months of intensive debate during that long hot summer of 1787 over every word and sometimes even punctuation mark of this historic document, the Founders did not make it clear that they intended the federal government to take care of people from cradle to grave. Maybe they actually envisioned a large, domineering beast of a central government with its tentacles in almost every area of the people’s lives. Well, then, let’s look at what they said at the time.
“Charity is no part of the legislative duty of the government.”
“I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents.”
- James Madison, "The Father of the Constitution"
"The democracy will cease to exist when you take away from those who are willing to work and give to those who would not."
"I predict future happiness for Americans if they can prevent the government from wasting the labors of the people under the pretense of taking care of them."
"My reading of history convinces me that most bad government results from too much government."
- Thomas Jefferson
“Dependence begets subservience and venality, suffocates the germ of virtue, and prepares fit tools for the designs of ambition.”
- Thomas Jefferson, Notes on the State of Virginia, Query 19, 1787
“I think we have more machinery of government than is necessary, too many parasites living on the labor of the industrious.”
- Thomas Jefferson, letter to William Ludlow, September 6, 1824
“Repeal that [welfare] law, and you will soon see a change in their manners . . . industry will increase, and with it plenty among the lower people; their circumstances will mend, and more will be done for their happiness by inuring them to provide for themselves, than could be done by dividing all your estates among them.”
- Benjamin Franklin, letter to Collinson, May 9, 1753
“I am for doing good to the poor, but I differ in opinion of the means. I think the best way of doing good to the poor, is not making them easy in poverty, but leading or driving them out of it. In my youth I traveled much, and I observed in different countries, that the more public provisions were made for the poor, the less they provided for themselves, and of course became poorer. And, on the contrary, the less was done for them, the more they did for themselves, and became richer.”
-Benjamin Franklin, November 1766
“I consider the foundation of the Constitution as laid on this ground that 'all powers not delegated to the United States, by the Constitution, nor prohibited by it to the states, are reserved to the states or to the people.' To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, not longer susceptible of any definition.”
- Thomas Jefferson, February 15, 1791
“A just security to property is not afforded by that government, under which unequal taxes oppress one species of property and reward another species.”
- James Madison, Essay on Property, March 29, 1792
Clearly, the Framers’ intention was for responsibility of promoting the general welfare of the people to fall squarely with the people and/or the States. They designed into the Constitution specific boundaries on the powers of Congress and the Executive branch that were not to be crossed.
It’s not too late.
Next time . . . What the courts have said.
Wednesday, April 7, 2010
Constitutional Moment of the Day
I choose to inaugurate this blog with an amendment without which I might not be able to inaugurate this blog.
Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Amen.
Quote of the Day
“The will of the people is the only legitimate foundation of any government, and to protect its free expression should be our first object.”
- Thomas Jefferson
I choose to inaugurate this blog with an amendment without which I might not be able to inaugurate this blog.
Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Amen.
Quote of the Day
“The will of the people is the only legitimate foundation of any government, and to protect its free expression should be our first object.”
- Thomas Jefferson
Remember Jefferson’s words and the First Amendment the next time you see someone like Karl Rove being shouted down during a book signing, or Ann Coulter being heckled so badly on a college campus that she cannot continue her speech, or a Tea Partier dominating a town hall meeting. With a few exceptions defined by the courts, everyone’s speech is protected whether you agree with them or not. Trampling on someone else’s right to free speech will not win your argument. Reasoned, thoughtful, unemotional civil discourse is the best way to get your point across.
And, on that note, here is . . .
A Reasoned and Unemotional Case Against the Constitutionality of the Health Care Reform Law
I have not read the health care reform law. I just wanted to get that out of the way first. The following arguments against it do not require that I read it. I will demonstrate that it is unconstitutional on its face. Many pundits and legal scholars are currently focusing on individual aspects of the law that may be deemed unconstitutional, such as the provision mandating that individuals buy health insurance. I hope to prove that the entire law is unconstitutional and should therefore be repealed in its entirety. With all the heated emotion on both sides of the issue, I want to provide a thoughtful, reasoned, unemotional argument against the law based on fact and historical judicial precedent. I am not a lawyer or legal scholar. I am just a guy who can read and think critically.
What the Constitution says:
Many proponents of the health care law point to the “General Welfare” clause of the Constitution as rationalization for not only the current law but also all entitlement programs. As I read Article I, Sec. 8, "general Welfare" is included in the expressed power “to lay and collect Taxes, Duties, Imposts and Excises to pay the Debts and provide for the common defense and general welfare of the United States.” To me, this is only a power to raise revenue. The clauses that follow in that same article and section give Congress expressed powers on how to use those funds to "raise and support Armies" and "provide and maintain a Navy," but it never states that congress shall have the power to provide for the needs of the people of the United States. If the Founders felt it necessary to clarify in later clauses how Congress shall use the revenues raised in order to provide for the common defense, shouldn't they have also clarified how those revenues should be used to provide for the general welfare?
Throughout the Constitution, the Founders use the terms "United States," "Government," “States,” and "People" to express specificity. In Art. I, Sec. 8 it says to "provide for the common defense and general welfare of the United States" not the "People of the United States." Seeing that common defense and general welfare are included not only in the same sentence but are not even separated by a comma, isn't it possible that the Framers were referring to the defense and welfare of the country as a political and/or geographical entity rather than the individual citizens of the country? And, that being the case, they were not referring to providing for the needs of the individual "people" of the United States. As I have said above, if they had intended to give Congress the specific power to provide for the general welfare of the individual people of the United States, wouldn't they have expressly stated that power? Of the eighteen powers given to Congress by Art. I, Sec. 8, six of them specify how Congress shall provide for the common defense, but not one specifies how Congress shall provide for the general welfare.
“With respect to the words general welfare, I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.” – James Madison
Some may point to the Preamble to the Constitution as proof that general welfare was intended to meet the needs of individual Americans. “We the People of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general welfare, and secure the Blessing of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” (Italics added) This seems to establish general welfare as referring to individual needs not the welfare of the United States as a political or geographical entity. However, the Preamble is just an introduction. It does not enumerate expressed powers, privileges, or restrictions to any specific branch of government. It merely states desired outcomes hoped for with the enactment of the Constitution. In fact it is unclear, by reading the Preamble alone, upon which of the three branches of the federal government, states, or individuals the responsibility of promoting the general welfare falls. An argument can certainly be made that the best way to promote the general welfare is to reduce taxes and government spending in order to allow “ourselves and our Posterity” to keep more of our wealth and expend it in ways that we see fit.
So, if the Preamble and Article I, Section 8 (or any other article or section) of the Constitution do not specify who is responsible for promoting the general welfare of the people of the United States, then who is responsible, and why did the Framers bother to include it in the Constitution? This brings us to the Ninth and Tenth Amendments.
Amendment IX
The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people. (bold added)
Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. (bold added)
Need I say more?
It’s not too late.
Next time . . . What the Founders said.
Subscribe to:
Posts (Atom)