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

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 I hope to prove that the entire law is unconstitutional and should therefore be repealed in its entirety.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.