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Obamacare is Unconstitutional – Part 1

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For those of you that read my blog on a weekly basis mostly to get your dander up, I will not disappoint you this week. To get right to the point, plain and simple, the newly passed “Obamacare” health care reform legislation is unconstitutional on many levels and Republicans if they have any political principles at all will run this November on a platform promising to repeal the measure in its entirety.

However, they may be saved from this act of unusual courage on their part if state attorneys general have their way. Already, there are lawsuits filed by 14 states against the law. The suits rightly state that, "The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying health care coverage." This argument before any court should be enough to at least invalidate that portion of the law. And if that portion is struck down then the financing mechanism for making the law somewhat viable is removed and the scheme falls flat on its face.

The states have chosen the portion of the new law that will give them the greatest chance of success in the courts. After all, it was deemed necessary at the beginning of the last century to pass an amendment to the Constitution allowing Washington to collect income taxes from Americans. How come an amendment is not required for Washington to order Americans to pay for health insurance?

But, there are also many other constitutional arguments that can be leveled against “Obamacare”. Article 1 Section 8 of the U.S. Constitution enumerates 18 specific powers granted to Congress. Healthcare is not one of them and as a matter of fact the responsibility for regulating the industry has historically fallen to states. States license doctors, hospitals, and have insurance commissions responsible for regulating rates and services. Of course, liberal interpreters of the Constitution will point out that there are two clauses in that same section which support their view that Congress has nearly unlimited powers when it comes to providing for the well-being of Americans.

The first clause is the “General Welfare” clause, “The Congress shall have 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…” Taken in context, general welfare is not separated by commas from “to pay the debts” and “common defense”. Therefore, the Congress has the power to provide for the general welfare of the United States by maintaining a common defense and paying the debts in the pursuit thereof. The phrase does not give Congress unlimited powers. If it did there would be no need for the 16 enumerated powers that follow in the same section.

The second clause liberal interpreters of the Constitution point to in order for Congress to do whatever it wants to is the “necessary and proper” clause. It reads, “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.” Many have labeled this the elastic clause which is about as accurate a label as the “Patriot Act”. The first part ending with “foregoing powers” obviously relates to the 17 previously mentioned enumerated powers in Section 8. The bone of contention is the phrase, “…all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.” What are these other powers? To liberal interpreters it means anything Congress feels should be done for the ‘general welfare”. The real answer is the powers specified to Congress outside of Article 1 Section 8 of the Constitution.

Article 2 dealing with the Executive Branch is a good example. In Section 1 of that article Congress has been given the power, not enumerated in Article 1 Section 8, to determine the time for choosing electors of the Electoral College. Article 2 Section 2 gives Congress power to enact laws dealing with certain appointments of the president. There are several amendments that give Congress power to, “enforce this article by appropriate legislation”. These powers of Congress not found in the article dealing with the legislative branch are “necessary and proper for carrying into execution all other powers vested by this Constitution in the government of the United States…” That was the original meaning of the necessary and proper clause. Furthermore, health care is not specified in any of these other powers, thus it is outside of Congress’s powers under federalism and a clear violation to the Constitution.

The Constitution grants very limited powers to all three branches of government, not just Congress. Those powers are enumerated and delegated in the document. To believe otherwise ignores the actual text and the historical context the document was written in. Why would individuals give unlimited power to a new government when they had just risked all they had to overthrow the unlimited tyrannical powers of another? They wouldn’t. This is why a strict constructionist interpretation is correct and why Obamacare is unconstitutional.

Part 2 will deal with the interstate commerce clause and why it is important to adhere to the Constitution.

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About Kenn Jacobine

  • http://drdreadful.blogspot.com Dr Dreadful

    ‘”The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying health care coverage.”‘

    The Constitution nowhere authorizes the United States to set up a space administration either, or construct buildings over six stories, or elect presidents called George, or elect presidents not called George. Honestly, Kenn, it’s not the be-all and end-all of the entire universe, you know.

    ‘Taken in context, general welfare is not separated by commas from “to pay the debts” and “common defense”. Therefore, the Congress has the power to provide for the general welfare of the United States by maintaining a common defense and paying the debts in the pursuit thereof.’

    A rather impressive mangling of the intended meaning there, Kenn.

    What that clause actually says is that among the responsibilities of Congress is to provide for the common defense and general welfare, and that the tools it has at its disposal for doing so are the levying of taxes, duties, imposts and excises.

    ‘The phrase does not give Congress unlimited powers. If it did there would be no need for the 16 enumerated powers that follow in the same section.’

    If the Founders had such a narrowly specific idea of what Congress ought to be able to do, then why are the enumerated powers so vague?

    The Supreme Court rarely rules that Congress has overstepped the bounds of its authority. I think that’s a significant point.

    ‘Why would individuals give unlimited power to a new government when they had just risked all they had to overthrow the unlimited tyrannical powers of another?’

    Still buying into that myth, then…

  • http://blogcritics.org/writers/christine-lakatos/ Christine

    Kenn, I wondered about the constitutionality of the ObamaCare mess, thanks for the insight. However, isn’t Obama’s administration about 85% lawyers? Do you think they thought about it before hand?

  • Clavos

    However, isn’t Obama’s administration about 85% lawyers?

    Nearly 100% of both the House and the Senate are lawyers, which is the prime reason the country’s so fucked up.

    Shakespeare had it right…

  • http://www.blogtalkradio.com/stubbornfacts Jamison

    I read the title and all I could think of was “Well… DUH!”
    Simply put; you must buy a product or service or be fined by the government. That in and of itself is unconstitutional. If the FEDS (Not the state all you knee-jerk lefties) forced you to buy life insurance or be fined, we would be upset. If the Feds said “Fund your retirement in a 401K or IRA or pay a fine” we would be mad. If the government fined you for growing your own food instead of shopping at grocery stores, we would be upset. But because the Messiah is forcing us to buy health insruance or be fined, and God forbid any of his voters say anything negative about Him, otherwise they damn their choice in the voting booth and look like a fool. I say they look more foolish when they cling to him till the bitter end, kind of like how I cling to my guns and religion. Hmmm, where did I hear those wise words?

  • http://www.blogtalkradio.com/stubbornfacts Jamison

    “Nearly 100% of both the House and the Senate are lawyers, which is the prime reason the country’s so fucked up.”

    Clavos;
    I generally hear that F word in a sentence and immediately dismiss the content based upon the lack of intelligent language… but my friend, I must admit… there is no other word in the english language that exists that better describes what we are in.. so, well said!

  • http://blogcritics.org/writers/christine-lakatos/ Christine

    Clavos I stand corrected…100%. And I ditto Jamison with your use of the “F” word and coming from you it has even more value.

  • http://www.maskedmoviesnobs.com El Bicho

    You need to stand one more time because currently, the Senate is 56% and the House is 36%. Perhaps Clavos was incorrectly adding them up to get his made-up number of nearly 100%.

    “I generally hear that F word in a sentence and immediately dismiss the content based upon the lack of intelligent language”

    Coming from a guy who think senators come from districts, not sure why that should hold much water with anyone.

  • Clavos

    Well, El B, I stand corrected.

    But 56% and 36% is well, 56% and 36% too many and still the reason we have a fucked up country, IM(notH)O.

    The bard was dead on. (pun intended)

  • http://blogcritics.org/writers/christine-lakatos/ Christine

    Thanks El, are you like Anderson Cooper now? “keepin’ em honest.” Still too many damn lawyers.

  • http://www.indyboomer46.blogspot.com Baritone

    A number of governors in states where their attorneys general have filed suit against the reform law have requested that the suits be dropped – first because they have virtually NO chance of success, and 2nd because it is a flagrant waste of tax payer money.

    There is far more precedent of the courts upholding actions of congress than knocking them down.

    This blind adherence to the constitution and the rather arrogant assumption that the founder’s intent is both known and relevant is ludicrous.

    Come November, if all the Reps have to run on is some notion that they are going to repeal the health care reform law, they will be in for a let down. Once people have a clearer understanding exactly what this reform legislation will provide, there will be far fewer objections to it. The numbers are already sliding in that direction despite supposed Rep and tea party outrage.

    Reps have already been instructed to lay claim to certain aspects of the reform as their own, despite the fact that every damn one of them voted against it. The hypocracy flows like wine at a bacchanalia. I guess it’s fortunate for the Reps that most of their adoring fans have no idea how much and how often they are being lied to.
    Basically, they just want to believe every word that Glen Beck spews, and they desparately want to just give Sarah Palin a big hugger bugger. They believe that she is our saviour incarnate, and that Obama is the anti-christ. Fie on thee Hussein!!!

    Good luck to all those Reps who are going to go out and try to convince voters that they should support returning control of their health care to the insurance companies. That’ll play really well come November.

    B

  • Clavos

    Control was never taken from the health insurance companies, B-tone, in fact, the dems handed ‘em a whole bunch more new clients with guaranteed government premium payment.

    Now they control the biz more than ever. Soon, because we are all a mandated captive market now, the premiums will begin to rise, especially when the no refusal and no cap provisions kick in.

  • Clavos

    Reps have already been instructed to lay claim to certain aspects of the reform as their own, despite the fact that every damn one of them voted against it.

    Source?

  • Clavos

    Once people have a clearer understanding exactly what this reform legislation will provide

    i.e. higher costs and longer waits and lines, fewer docs and more patient competition for available hospital beds.

    Not to mention government overpayment and corruption, as well as escalating fraud — just like Medicare.

  • http://delibernation.com Silas Kain

    When people are finished whining about this so-called “ObamaCare” will it even matter? We’ve got a 3 year window to fix it. In the meantime we have far more pressing problems to contend with. Oh, but I forgot. We accept the bullshit fed to us by politicians in power, the so-called media and the extremists on both sides. Grow up, America. We’re in one big giant cluster phuque of a mess and nobody has the balls to do anything about it. Do white people hate the thought of a Black President so much that they will stop at nothing to get him out?

    We’re supposed to be this great society, in a country so full of promise. We’re a band of whining, self centered, spoiled little brats who worry more about what we accumulate than what we achieve. We are a pitiful disgrace in the memory of all those who sacrificed so much to get us here. We’ve squandered that which we’ve inherited and don’t appreciate that which we’ve been given.

    Get out of the way of your preconceived notions, pitiful prejudices and self righteous high horses. Recognize that we have ISSUES here folks. It isn’t all about this so called health care. We are becoming an oligarchy. The Republic is in the throes of death. In a couple of years I will come back and say I told you so as you adhere to the extremists on both sides of the well financed aisle. I am so disgusted with this national discourse or the lack thereof. What the hell is wrong with us that we can’t see that which is staring us in the face? Oh, I forgot it isn’t on the cover of the Enquirer or embedded in a video game. So drive your cars while talking on your cell phones. We deserve what we’re about to get.

  • Kenn Jacobine

    Dr.D,

    “then why are the enumerated powers so vague?”
    Please give an example.

    “The Supreme Court rarely rules that Congress has overstepped the bounds of its authority. I think that’s a significant point.”

    Read part 2 next week for a refutation of that.

    Baritone,

    “This blind adherence to the constitution and the rather arrogant assumption that the founder’s intent is both known and relevant is ludicrous.”

    Why would the Founders intend the Constitution to be unknowable? Doesn’t the document say it is the Supreme Law of the Land? Why do we have to guess what they meant? Because it doesn’t say what you want it to? It is not only arrogant but incredibly self-serving to make up your own definitions of what the Founders intended. You are the one looking for something from the government – health care from cradle to grave, not me.

  • zingzing

    jamison, et al: “I generally hear that F word in a sentence and immediately dismiss the content based upon the lack of intelligent language…”

    shut the fuck up, grandma. you people are ridiculous. this isn’t kindergarten. know the value of language.

  • zingzing

    doc: “then why are the enumerated powers so vague?”

    kenn: “Please give an example.”

    holy shit. you kidding? what does “necessary and proper” mean to you? don’t you think that’s been debated?

  • http://ruvysroost.blogspot.com Ruvy

    One of the basic things I learned in law school many years ago is that lawyers were there to break laws and give that breakage the aroma of legality. So, the vast number of lawyers in the American congress should – and does – indicate a tendency towards violating the Law of the Land – the Constitution of 1787 – with the intent of giving that violation a whiff of legitimacy. The odor of bullshit is never well perfumed by laws the American congress passes.

    After all, you are all afraid to demand something so simple as a long form birth certificate from a man who has virtually dictatorial power in America (that you yourselves gave him) – and you are afraid to publicly challenge the constitutionality of the appointment of the bitch Hillary Rodham Clinton as Secretary of State.

    If you haven’t got the guts to defend your liberty, you deserve to lose it – and you are losing it.

    In law school, we called constitutional law “con law”. And indeed it is an accurate title – you are getting conned big time.

    Now bend over and smile while the stick is shoved up your anuses! You are getting the government you richly deserve!

  • zingzing

    give up the ghost, ruvy.

  • http://ruvysroost.blogspot.com Ruvy

    Heh! zing, you can’t write a line of readable poetry, and you tell me to “give up the ghost?”

    I’ll not follow you into oblivion. When I start seeing you actually write articles here (or even elsewhere), I’ll know you haven’t given up the ghost.

    I have a feeling I’ll have a long wait.

  • http://drdreadful.blogspot.com Dr Dreadful

    Please give an example.

    Um, most of them, Kenn…

    Most of the numerated powers are non-specific, and it’s left up to Congress to enact legislation or regulation as it sees fit in order to exercise them.

  • http://drdreadful.blogspot.com Dr Dreadful

    I generally hear that F word in a sentence and immediately dismiss the content based upon the lack of intelligent language

    How about if somebody says to you, “Oh, fuck, there’s a fifty-ton weight plummeting from a great height right above your head – get out of the way”?

  • Ed Shine

    Dr. Dreadful said:

    “The Supreme Court rarely rules that Congress has overstepped the bounds of its authority. I think that’s a significant point.”

    SCOTUS just found the caps on direct corporate spending unconstitutional. They ruled The Gun Free School Zone Act unconstitutional. They did the same with The Violence Against Women act, as well as many other lesser known cases over the last decade and a half. That SCOTUS rarely finds Congress has oversteps the bounds of its authority is an exaggeration spearheaded by left leaning legal “experts”.

    CBS News poll released Tuesday found that 62 percent of Americans want congressional Republicans to keep fighting the bill

    The will of the people must prevail.

  • Kenn Jacobine

    Dr. D,

    Just give me one.

    Ed,

    You stole my thunder. Here is a preview for next week. The interstate commerce clause was interpreted narrowly before the New Deal. FDRs Court packing plan, yes statists circumvented the rules and traditions in those days as well to get what they couldn’t get through proper means, turned precedence on its head as far as the clause was concerned. The Court did not always rule Congress could do whatever.

  • http://drdreadful.blogspot.com Dr Dreadful

    Ed,

    I did a bit of digging and found that Congress has passed over 20,000 pieces of legislation in its history.

    I also found that up to 2002, the Supreme Court had found a grand total of 158 of those to be unconstitutional, in whole or (usually) in part.

    158 out of 20,000 is less than 1%. We remember a lot of those cases because they’re unusual and therefore newsworthy, but they’re not common.

    So my point stands.

  • http://drdreadful.blogspot.com Dr Dreadful

    Dr. D,

    Just give me one.

    You can read, Kenn.

  • Baronius

    With regard to swearing, I have the same reaction as Jamison. People like me can’t stop people like Zing from swearing; people like Zing can’t stop people like me from disapproving.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    “Fuck” is not necessarily a swear word. (I believe it’s an acronym (help me here, Dreadful!) What’s obscene and what’s not can only be determined by context.

    Is “fornicating” a better word? Or how about “procreating.”

    But perhaps you’re objecting, Baronius, to the very activity – namely, that under some circumstances it may be OK to do it but never, never should one ever refer to it by any word whatever.

  • zingzing

    ruvy–both your reading comprehension and memory need work. it wasn’t supposed to be “poetry.” it was a “chorus.” big difference, and only one bit you apparently missed out on. the other one being that it was mocking you, so of course it was supposed to be anything but good. (and you misuse the word “readable.”)

    also, we’ve gone over the fact that i’ve written here before. and do you really think i do my writing under the name “zingzing” anywhere else? no. i do it under my real name. your wait was over before it even began, mr. arrogance.

  • http://drdreadful.blogspot.com Dr Dreadful

    “Fuck” is not necessarily a swear word. (I believe it’s an acronym (help me here, Dreadful!)

    Certainly. It’s not an acronym: that story is an urban legend. It is, on the contrary, a very, very old word.

  • zingzing

    baronius, if you’re going to bother disapproving of swearing amongst adults, i’m afraid you’ll just have to look like something stinks all the time. it’s hopelessly prudish.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Thanks for posting that. I’ve heard that first from the KY rednecks, that’s why I asked.

  • Clavos

    “Fuck” is not necessarily a swear word. (I believe it’s an acronym (help me here, Dreadful!)

    Interestingly, in Shakespeare’s day, one of the slang words for sexual intercourse was the verb to die (for obvious reasons — le petit mort, etc.), and wherever Shakespeare used it in a context that would allow for a double entendre, he was punning.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Interesting aside:

    SNAFU: Situation Normal: All Fucked Up

    wiki.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    “While Shakespeare never used the term explicitly; he hinted at it in comic scenes in a few plays. The Merry Wives of Windsor (IV.i) contains the expression focative case (see vocative case). In Henry V (IV.iv), Pistol threatens to firk (strike) a soldier, a euphemism for fuck.”

    An excerpt from Dreadful’s second link.

  • Clavos

    SNAFU: Situation Normal: All Fucked Up

    Old Army expression. My Dad learned it in WWII.

  • http://drdreadful.blogspot.com Dr Dreadful

    There’s another similar acronym: FUGAZI. Never been able to figure that one out. I’ll have to look it up.

  • Clavos

    And FUBAR: Fucked Up Beyond All Recognition.

    Also Army, also WWII.

  • http://drdreadful.blogspot.com Dr Dreadful

    According to the Wiki entry on the Marillion album of that name, ‘FUGAZI’ meant “Fucked Up, Got Ambushed, Zipped In” (as in body bag).

    Don’t find that explanation very convincing, somehow.

  • Clavos

    I found a def that says it’s from Italian, is not an acronym, and means “fake,” with a second possibility that it’s from “Latin fugax, fugac-, “ready to flee, flying”, hence, fleeting, transitory.”

  • zingzing

    doc–that’s what i’ve always understood fugazi to mean, at least in the military use. and that’s where the band fugazi took it from, and whatever the band fugazi does, the band fugazi does right.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    FUBAR:

    “fucked up beyond all repair,” “fucked up beyond all recognition,” or any of a number of similar constructions. It originated in the United States armed forces, but its usage has spread to colloquial use.

  • cannonshop

    I believe that the Government will base their case on the Interstate Commerce Clause-and Volokh actually wrote a very good article on his blog about why the suit isn’t going anywhere (at least, anywhere forward).

    Oddly enough, another law basically BLOCKS interstate commerce in Health Insurance, so, it’s an interesting argument.

  • http://drdreadful.blogspot.com Dr Dreadful

    I think we need to invent our own Blogcritics ones.

    For example, we could have SAFUBA – Spammer Assholes Fucked Up Blogcritics Again.

    Or PESTAFU – Please, Editors, Shut That Annoying Fucker Up.

    Hmm, I think I’m onto something. Everyone – meeting in five!

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Baronius had no idea what he had started. Now he’s collecting with (com)pounding interest.

  • Baronius

    People saying “fuck” after someone complains about it is inevitable. It isn’t like I’m an old socialite who’s fainting at the misbehaviour of the Marx brothers. I’ve heard the word before. I’m just being honest: when someone resorts to profanity, I think of them as less bright.

  • http://drdreadful.blogspot.com Dr Dreadful

    So, Herr Baron, if I call someone a stupid fucker, is that an oxymoron? :-)

  • http://drdreadful.blogspot.com Dr Dreadful

    And after Baronius responds to that, we’ll have to stop. I’ve just realised that nowhere in the Constitution does it say that we have the right to use the word ‘fuck’ with wild abandon, and we are therefore acting unconstitutionally.

  • zingzing

    “when someone resorts to profanity, I think of them as less bright.”

    well, that’s arbitrary and will lead you to conclusions that aren’t deserved. watch yourself on that one. you’ll end up underestimating people. dangerous thing to do.

  • zingzing

    doc–on the other hand, it does say we have a right to bear arms. where’s that fucking grizzly? (the lesson? take the constitution literally and you’ll end up dead in the woods.)

  • http://takeitorleaveit,typepad.com/ roger nowosielski

    Just don’t keep on using it with unwanton abandon, zing, or you’re bound to cheapen the word. That’s my utmost concern.

  • zingzing

    it’s hard to cheapen the word “fuck.” “liberty” and “freedom” are a bit different in that respect.

  • Baronius

    I don’t think it is arbitrary. It’s a lot like P.J. O’Rourke’s observation that the more outrageously a person dresses, the less likely he is to have something original to say. Blusterers and showboats are just not as sharp.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    I suppose it has a staying power, zing. I kinda thought so.

  • http://www.indyboomer46.blogspot.com Baritone

    Kenn,

    It is YOU among others who choose to “interpret” the constitution as you see fit.

    It is my belief that much of the constitution needs to be reconsidered in light of a wholly different world than that known in the 1780s. I don’t recommend throwing it out with the bath water, but there are obvious elements which should be reconsidered. That’s why there is an amendment process.

    Doc’s a pretty smart guy!

    B

  • zingzing

    baronius: “I don’t think it is arbitrary.”

    but it is…

    “It’s a lot like P.J. O’Rourke’s observation that the more outrageously a person dresses, the less likely he is to have something original to say. Blusterers and showboats are just not as sharp.”

    that’s arbitrary as well. it’s got nothing to do with reality.

  • http://www.indyboomer46.blogspot.com Baritone

    Also, what we want is what is common amongst most western countries. This country is being victimized by a bunch of tight assed uncaring, unforgiving, selfish and self absorbed “conservatives” who’s mantra is “I got mine. Fuck you.”

    B

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    There you go again, using the forbidden word.

  • Baronius

    Bar – If you want it amended, then amend it. Don’t play games and pretend that it means something other than what it says.

  • Clavos

    “I got mine. Fuck you.”

    Hmmm. I like that.

    Has a certain ring to it; a certain Je ne sais quoi.

    Anyway, works for me…

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    My girlfriend used to say that to me when I was still young and immature – only it was the other way around.

    Now I know better.

  • http://blogcritics.org/writer/dan_miller Dan(Miller)

    With the discussion having ascended to the high point of elaborating on the word Fuck, Comment # 10 says it all:

    This blind adherence to the constitution and the rather arrogant assumption that the founder’s intent is both known and relevant is ludicrous.

    Clearly, the U.S. Constitution is just an antiquated document written by a bunch of aristocratic, dead white males and has no further significance in this, our post-modern, multicultural society. Best have done with it and Move On! HealthControl is with us, and is needed because we can’t and/or won’t voluntarily look after ourselves and others less fortunate. The same is true of the laughable notion of freedom of speech and the absurdly antiquated notion of a right to bear arms.

    Still, it might be best simply to burn the original, assuming it continues to take up space somewhere in a hidden corner of the National Archives. As all Boy Scouts learned, that is the respectful way to dispose of a tattered and torn U.S. flag. It’s more dignified and the carbon emissions would contribute less to the horrors of man made global warming than a convocation of experts called upon to gather in Washington to wear white coats and to praise HealthControl.

    Let’s just do it.

    Dan(Miller)

  • http://www.indyboomer46.blogspot.com Baritone

    Well Dan, you didn’t really follow through with my comments, did you?

    “the absurdly antiquated notion of a right to bear arms”

    I will certainly agree with that, though.
    It is absolutely antiquated.

    B

  • Ed

    Dr Dreadful.

    The supreme court doesn’t rule on every piece of legislation Congress passes! Someone has to bring suit. Landmark constitutional cases that make it to the Supreme Court in and of themselves are rare. Recent precedence carry more weight and the bulk of the current justices have overturned some pretty big legislation in the last two decade and a half.

  • Ed

    PS.

    I meant that last decade and a half.

  • Kenn Jacobine

    Baritone,

    You hit the nail on the head. If you want health care, retirement, etc… from Uncle Sam then amend the Constitution. I am not against that on a legal basis. The problem is that Congress, the president and the Supreme Court have violated the Constitution so much that most folks don’t think it matters anymore.

  • Jordan Richardson

    As a matter of history, I’m curious as to how many American governments haven’t violated the Constitution.

  • Mark

    The first clause is the “General Welfare” clause, “The Congress shall have 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…” Taken in context, general welfare is not separated by commas from “to pay the debts” and “common defense”. Therefore, the Congress has the power to provide for the general welfare of the United States by maintaining a common defense and paying the debts in the pursuit thereof.

    Does this ‘argument from missing commas’ make sense without torturing the English language?

  • Kenn Jacobine

    The is a comma after taxes and before duties because they are not exactly the same thing. Imposts and excises are the same thing so no comma needed. Then there are no commas between debts, common defense, and general welfare. This leads me to believe they were meant to be the same power not three different ones. Thus to provide for the general welfare Congress has the power to pay the debts (it doesn’t say how they were incurred) and provide for the common defense. Then 16 or so powers are enumerated and I take those to be the ones that taxes are raised for (primarily defensive in nature). Again, if the Founders meant for health care to be even a potential power of Congress they would have specified that in some way in this section. Perhaps “Congress shall have power to provide for health and well-being of Americans”.

  • Mark

    If there were a comma, would ‘provide for’ apply to ‘general welfare’? I’m not seeing it; could you provide a different sentence with the structure that you claim?

    Thus:

    ‘Money raised pays our bills and buys food and health care.’ is a well formed sentence.

    ‘Money raised pays our bills and buys food, and health care.’ is not.

    It does make sense is to treat ‘provide for the common defense and general welfare of the United States’ as a singular phrase.

  • Kenn Jacobine

    “The Congress shall have 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…”

    Why doesn’t it say, “to pay the debts, provide for the common defense, and promote the general welfare”.

    In this case I would say there are three different powers and general welfare is very vague thus potentially allowing whatever benefits all Americans equally can enjoy. Perhaps a universal system of health care that everyone has equal access to. But it isn’t phrased that way – it is all one phrase with no separations by commas. Also, the other 17 or so powers in the section are listed individually. Notice too that those 17 or so other powers of Congress relate to military power (common defense), courts, money, naturalization rules (general welfare). If the Founders had meant for health care to be in there they would have said so.

  • Mark

    Why doesn’t it say, “to pay the debts, provide for the common defense, and promote the general welfare”.

    Because that’s not how the authors chose to word it.

    My question remains, does “The Congress shall have 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…” (with your added comma) even make sense. It seems like quite a stretch.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    “If the Founders had meant for health care to be in there they would have said so.”

    Never mind the “comma” argument, this conclusion is plainly ridiculous.

    It’s like saying they should have foreseen space exploration or the man in the moon.

  • Kenn Jacobine

    No it doesn’t make sense that is why I added and “promote the general welfare”. But the Founders did not and that is why I believe those three powers are the same thought.

  • Mark

    While the Founders might have appreciated your correction to the wording of the Constitution, I’m not sure how the Justices will view it. It might be more reasonable to take the original sentence at face value.

  • Baronius

    Roger, health care existed in the 1700’s. If the Founding Fathers had expected it to be paid for by the government, they would have said so, and done so.

    Interestingly, the author of the Declaration of Independence funded the Lewis and Clark expedition, so there is a precedent for funding exploration.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    You’s have to explain that, Baronius. I surely didn’t mean to say there were no practicing MDs. There may have been insurance as regards shipping and other stuff – of course there was, even during the Renaissance. But what of life or health insurance? Isn’t this what we’re talking about.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Besides, only a third or so were “citizen” and had voting rights, so I’d seem to me we would have to overcome this hurdle first.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    #75,

    That’s unthinkable. It’s a perfect document in every conceivable way.

  • Baronius

    Roger, Kenn said, “if the Founders had meant for health care to be in there they would have said so”. You said that was ridiculous, and made the comparison to two events that would have been impossible for them to foresee. But health care was foreseeable at the time of the Revolution; in fact, it already existed. So your rebuttal doesn’t hold water.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Again, you’re equivocating on the term “health care.” And so is Kenn – imputing our present understanding of it into whatever may have existed in their minds.

    Why don’t you come up with some instances of the term – using OED, for example, especially when it first came into use? I bet you it’s a far more modern term than you and Kenn are making it out to be.

    In fact, it’s both of you who are guilty of flagrant ahistoricism.

  • Baronius

    Roger, consider these quotes from James Madison:

    The powers of the federal government are enumerated; it can only operate in certain cases; it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction.

    The legitimate meaning of [the Constitution] must be derived from the text itself.

    With respect to the words, “general welfare,” I have always regarded them as qualified by the details of power connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution … not contemplated by the creators.

    The real measure of the powers meant to be granted to Congress by the Constitution is to be sought in the specifications … not … with a latitude that, under the name or means for carrying into execution a limited Government, would transform it into a Government without limits.

    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.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Well, that’s quite a different argument than the one Kenn offered – namely, that if health care was to be provided for, it would have to be specified. I was responding to that part only.

    Do you regard the Social Security Act as unconstitutional as well?

  • Mark

    (Kenn, note that I don’t disagree with your conclusion, only your argument. Isn’t the relevant precedent to argue for the law’s unconstitutionality United States v. Butler (1936)?)

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    What is Kenn’s conclusion, to ask a dumb question?

  • Mark

    umm…Obamacare is Unconstitutional?

  • Baronius

    Roger, that’s the same argument Kenn made.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    In principle, perhaps, but not in specifics. He shouldn’t have used “health care” as a well-defined term (at least not in the sense it is today), and then argue for its unconstitutionality from the fact that it wasn’t enumerated.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Mark,

    (1) I don’t want to give him that yet. Perhaps Baronius comment (#83) might serve as an intro to this very question;

    (2) Why draw the line in the sand now (and not before)? Perhaps your #84 is an attempt to open this can of worms.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    It would seem that the issue may have to be resolved on the proper interpretation of the term “general welfare” and the role it was meant to play in the key sentence.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Forgive the fucked-up sentence structure in #90.

  • Mark

    On the other hand, there’s this decision that contradicts US v Butler:

    Congress may spend money in aid of the “general welfare”. Constitution, Art. I, section 8; United States v. Butler, 297 U. S. 1, 65; Steward Machine Co. v. Davis, supra. There have been great statesmen in our history who have stood for other views. We will not resurrect the contest. It is now settled by decision. United States v. Butler, supra The conception of the spending power advocated by Hamilton and strongly reinforced by Story has prevailed over that of Madison, which has not been lacking in adherents. Justice Cardozo, Helvering vs. Davis and Steward Machine.

  • Kenn Jacobine

    Mark,

    Indeed the Butler case was ruled on just before FDRs court packing scheme which scared and intimidated the justices into acquiescence. After that, the interstate commerce clause, and general welfare clause were used by the court to justify actions of Congress.

  • http://drdreadful.blogspot.com Dr Dreadful

    Ed,

    The supreme court doesn’t rule on every piece of legislation Congress passes! Someone has to bring suit. Landmark constitutional cases that make it to the Supreme Court in and of themselves are rare.

    Why does that invalidate my argument? It still means that only a tiny proportion of laws are deemed to have anything unconstitutional about them.

    Recent precedence carry more weight and the bulk of the current justices have overturned some pretty big legislation in the last two decade and a half.

    That’s simply a corollary of the fact that modern Congresses are a lot more legislatively active. Indeed, there was more than one Congress during the 19th century that did not pass any legislation at all. One is led to wonder what they were actually doing with their time: whacking each other about the head with sticks, apparently, among other things.

  • cannonshop

    #94 There’s also the possibility that we don’t need stacks of new laws every year.

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    The complexity of our society seems to require that, Cannon. We have become a contentious society, haven’t we?

  • hbkjbn

    good stuff, but you are dealing with lawyers, paralegals, wana be lawyers and slaves

  • http://blogcritics.org/politics/article/obamacare-is-unconstitutional-part-1/ QueenOfPain

    You’re a dumb ass. No where in the constitution does it say that unemployment benefits are a “right” either. Anyone on here who is republican, unemployed and on any kind of unemployment or help of any kind from the government….STOP taking the help right now! Remember…you are the ones who disagree with it! When the constitution was written…doctors treated people without money!! They bartered!! Healthcare was not withheld based on whether or not one had insurance. So just shut the F*** up! Get off your high horse and don’t think for a minute that November is going to help you!

  • John Wilson

    Nowhere in the constitution does it say we should bailout corporations either, yet that is one of the first things we did when we sent Marines to Tripoli against the pirates. Nor does it say we should use federal funds to finance a transcontinental railroad, or transcontinental highways.

    We have a long history of financing corporate enterprises so one can hardly blame ordinary citizens for asking the government to finance something for them, like healthcare, unemployment, etc.