Another word on mandates

posted at 1:30 pm on October 25, 2009 by Ed Morrissey

When asked where Congress derives its power to issue a mandate to citizens to buy health insurance or face large fines or jail time, Democratic politicians like Nancy Pelosi, Patrick Leahy, and Steny Hoyer scoff at the very question as “ridiculous.”  However, the last time such a mandate was proposed, at least one entity on Capitol Hill did not find it ridiculous at all.  In 1993, the Congressional Budget Office analyzed HillaryCare and reported to Congress that it would take an “unprecedented” step in issuing such mandates (via Verum Serum):

AN INDIVIDUAL MANDATE WOULD BE UNPRECEDENTED

A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States. An individual mandate would have two features that, in combination, would make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government.

Federal mandates typically apply to people as parties to economic transactions, rather than as members of society. For example, the section of the Americans with Disabilities Act that requires restaurants to make their facilities accessible to persons with disabilities applies to people who own restaurants.  The Federal Labor Standards Act prohibits employers from paying less than the federal minimum wage. This prohibition pertains to individuals who employ others. Federal environmental statutes and regulations that require firms to meet pollution control standards and use specific technologies apply to companies that engage in specific lines of business or use particular production processes.  Federal mandates that apply to individuals as members of society are extremely rare. One example is the requirement that draft-age men register with the Selective Service System. The Congressional Budget Office (CBO) is not aware of any others imposed by current federal law.

The Selective Service registration has been controversial since its restart in 1980, but it doesn’t require that young men buy military uniforms each year as a consequence.  It requires a one-time registration as a means to have a ready mobilization plan for national defense in an emergency — and drafts have long precedent in American history.  Even a draftee’s time in the service, however, isn’t permanent, but a temporary service, usually two years.

As the CBO noted in this 1993 analysis, there has never been a federal mandate for residence to buy any product, let alone one from a private industry heavily regulated by the government.  The Constitution does not grant Congress that power, and the Tenth Amendment strictly limits the federal government’s powers to those enumerated in the Constitution.  Some dismiss the Tenth Amendment as a “truism” rather than a fact of constitutional law in order to dismiss the entire point of the document — which was precisely intended to prevent the federal government from assuming dictatorial power over the states and individual citizens.

I’ll close with explanations of “general welfare” from James Madison and Thomas Jefferson, two men who led the effort that produced the Constitution, and its close connection to enumerated powers and their limitations:

Money cannot be applied to the General Welfare, otherwise than by an application of it to some particular measure conducive to the General Welfare. Whenever, therefore, money has been raised by the General Authority, and is to be applied to a particular measure, a question arises whether the particular measure be within the enumerated authorities vested in Congress. If it be, the money requisite for it may be applied to it; if it be not, no such application can be made. (James Madison, via Quoty)

[O]ur tenet ever was, and, indeed, it is almost the only landmark which now divides the federalists from the republicans, that Congress has not unlimited powers to provide for the general welfare, but were to those specifically enumerated; and that, as it was never meant they should raise money for purposes which the enumeration did not place under their action; consequently, that the specification of powers is a limitation of the purposes for which they may raise money. (Thomas Jefferson, via Quoty)

If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions. (James Madison, Letter to Edmund Pendleton, January 21, 1792 Madison 1865, I, page 546)

The Tenth Amendment was added to the Constitution to explicitly enforce that limitation.


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I’m sure in their brilliance and foresight the founding fathers never imagined the dictatorial lame-as*ses we call congress. Power to the people!

redfoxbluestate on October 25, 2009 at 1:36 PM

you may be right, but they don’t care. Its a technicality to be overcome. I do have this question, where do groups like the ACLU stand on the government gaining such power over the individual?

rob verdi on October 25, 2009 at 1:37 PM

I’ll quote myself from something I posted last night…

The easy argument is that it’s in everyone’s best interest, so it falls under the general welfare clause of Article 1, Section 8 of the Constitution. If that’s the case, then where does it end? It would clearly further the interests of the “general welfare” if every adult volunteered 20 hours of community service each month. Does that give Congress the Constitutional authority to compel every citizen 18 and over to spend four or five hours every week working in a homeless shelter or picking up trash on the side of the road?

flipflop on October 25, 2009 at 1:38 PM

It’s just untrue that the government cannot do whatever it wants when the D’s are in power. Stop screaming about obscure and boring laws and articles of some “constitution”.

/sarc tag needed?

Mord on October 25, 2009 at 1:38 PM

“unprecedented”

But we have The Precedent, now.

See how that works. America voted for national suicide on Nov 4th, and that’s what we’re getting.

progressoverpeace on October 25, 2009 at 1:42 PM

Oh now you done gone and done it Ed… quoting those evil racists capitalist founding fathers. President Obama is surely going to issue a Marxist fatawa against you now, you glen beck FoxNews hater you…

Is a sarc tag really necessary for this post???

doriangrey on October 25, 2009 at 1:43 PM

According to Obama, the constitution represents fundamentally flawed thinking.

jhffmn on October 25, 2009 at 1:44 PM

For Pelosi, Reid, and Leahy the issue is less about General Welfare than it is about absolute power. Using that power to override the constitution and control the unwashed masses is the liberal agenda. The fact that requiring citizens to pay for Obamacare would be federally unprecedented fits nicely with the first black POTUS meme. It’s all about power, and the change that undermines virtually everything America stands for.

anXdem on October 25, 2009 at 1:45 PM

Good article Ed. The Socialists can “wet dream” all they won’t but this is still UNCONSTITUTIONAL.

HondaV65 on October 25, 2009 at 1:46 PM


“It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood”……….James Madison

Now some one tell me how Madison knew there would be 1500 pages plus in this health care bill?

Rovin on October 25, 2009 at 1:47 PM

The Constitution has become the equivalent of the 55 MPH sign on the interstate.

NNtrancer on October 25, 2009 at 1:48 PM

Looks to me like there may be one gigantic class action lawsuit agaist the federal government if this crap sandwitch goes through.

Count me in!

katy on October 25, 2009 at 1:49 PM

Does anyone seriously expect a nitwit like Pelosi to have any understanding at all of the Constitution and its underlying principle of limited government?

Cicero43 on October 25, 2009 at 1:50 PM

They actually could pass this as a straight-up massive tax increase to get what they really want : Government run healthcare. That would be constitutional but politically suicidal. If they really believed that this country needs this and wants it, it could be done. But I think they know that few people actually want their idea of a single-payer european style healthcare system.

Mord on October 25, 2009 at 1:51 PM

Rovin on October 25, 2009 at 1:47 PM

The founders were truly wise beyond any measure.

Don’t forget this one though…

http://www.youtube.com/watch?v=11OhmY1obS4&feature=player_embedded

katy on October 25, 2009 at 1:52 PM

We need to keep using the Constitution as a hammer against the Left. They’ve gotten away with ignoring the Constitution for far too long and it’s past time we drew a line in the sand and challenged them to cross it. We must also demand that the GOP start using the Constitution in their challenges of the Democrat’s agenda. While it’s a nice exercise to shine the light of day on the heavy taxation, regulation, rationing, government control, et al of their plans the bottom line it that it is all unconstitutional.

In questions of power, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution. – Thomas Jefferson

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 (OBAMACARE – mine), the money of their constituents. – James Madison

DerKrieger on October 25, 2009 at 1:53 PM

so Ed, would any citizen have standing to fight this?

ginaswo on October 25, 2009 at 1:54 PM

“The Founding Fathers acted stupidly…”

- Obozo

Cicero43 on October 25, 2009 at 1:55 PM

Good points… and I agree… it’s just slightly complicated by the position of the opposition to the Federalists as noted by Jefferson… would the necessity of TJ writing that suggest that there were Founders who saw a more “robust” role for the federal government than that understood by the Jefferson and the republicans?

Note: However they fell down on these issues, I know that neither side would have ever envisioned the federal government mandating the purchase of a good or service… but the Federalists would have been more inclined to see the role of the federal government to be more active than the Jeffersonian republicans… and didn’t Madison gravitate from the former to the latter?

I guess, in today’s terms, the differences would be seen as the difference between the extreme Libertarian position (Jefferson) and the ultra-conservative (Adams, Washington)view of government… both would be horrified by the welfare state and the long fingers of the government into private lives and business.

mankai on October 25, 2009 at 1:57 PM

Another excellent post Ed.

Zorro on October 25, 2009 at 1:59 PM

mankai on October 25, 2009 at 1:57 PM

You’re right. Even the Founders most supportive of an activist federal government would never approve of where we are today.

DerKrieger on October 25, 2009 at 2:00 PM

I’m afraid the real danger comes from an electorate educated by left-wing high school teachers who teach the “living document” doctrine of the Constitution, that the government grants rights instead of guaranteeing natural rights. My high school senior argues with his teachers, God bless him.

Tyrone Slothrop on October 25, 2009 at 2:00 PM

I do have this question, where do groups like the ACLU stand on the government gaining such power over the individual?

rob verdi on October 25, 2009 at 1:37 PM

The ACLU has never cared about the constitution. They use it when convenient, disregard it when it is not. After the Heller decision definitely found the right to bear arms as an individual right, rather than reevaluate their shameless position, they just said:

The ACLU interprets the Second Amendment as a collective right. Therefore, we disagree with the Supreme Court’s decision in D.C. v. Heller. While the decision is a significant and historic reinterpretation of the right to keep and bear arms, the decision leaves many important questions unanswered that will have to be resolved in future litigation, including what regulations are permissible, and which weapons are embraced by the Second Amendment right that the Court has now recognized.

http://blog.aclu.org/2008/07/01/heller-decision-and-the-second-amendment/

Firefly_76 on October 25, 2009 at 2:00 PM

Can we mount a campaign to send the Dems copies of the pocket Constitution from the Heritage Foundation?

DerKrieger on October 25, 2009 at 2:01 PM

“unprecedented”
But we have The Precedent, now.

See how that works. America voted for national suicide on Nov 4th, and that’s what we’re getting.

progressoverpeace on October 25, 2009 at 1:42 PM

As ever POP, we seem to be on the same page.

According to Obama, the constitution represents fundamentally flawed thinking.

jhffmn on October 25, 2009 at 1:44 PM

Which to my mind poses an obvious question, how can one be diposed towards protecting the sanctity of that document, if that person in the past has only maligned it’s tenets?

What degree of cognitive dissonance must be prevalent within the public to at once think that such a sacred covenant would be safe in the hands of he that has only shown disdain for it?

I just don’t get it, how on earth was this travesty perpetrated?

That’s a rhetorical question, don’t bother responding.

Archimedes on October 25, 2009 at 2:03 PM

I think that any entitlement in the US should come with an equal requirement.

Recipients of welfare should give back to their communities by performing 10 hours of community service a week as a condition of benefits. This is work done in their local community, such as improving and maintaining public housing (yard work, painting) cleaning up trash, or (for pre-screened recipients) providing childcare for other recipients while they carry out their duties. They could also serve in local libraries and at public parks and pools. Think about the impact of the poorest communities being the cleanest and closest knit.

Similarly, something as sweeping and massive as public healthcare should come with mandatory military service.

Entitlements should not just have a service requirement to make citizens more productive, but by imposing a restriction in conjunction, it would lift the veil off of entitlements and people would truly see that the government intervening into private life through entitlement programs represents loss of liberty. Nothing is ever free and people need to learn that. The resources for any entitlement must come from somewhere and everyone that seeks an entitlement must be forced to face the cost so that they may be more careful to ask for one in the future.

erakis on October 25, 2009 at 2:04 PM

Federal mandates that apply to individuals as members of society are extremely rare.

With all due respect to the CBO, what exactly are Social Security and Medicare then ? Two of the biggest entitlement programs in this country came about because of

A) a**h*le liberals who imposed their ideas of what “individuals as members of society” should do…

B) The sheeple dim witted electorate that acquiesced to this shameless attack on individual freedom.

nagee76 on October 25, 2009 at 2:06 PM

Mr. Jefferson, are you serious? Are you serious?

LASue on October 25, 2009 at 2:07 PM

Before we do anything…Obama and the left must be vigorously challenged on their view of the Constitution being a flawed document and the founders having blind spots.

What they have and are doing is classic Alinski. If they can discredit the authors and diminish the foundations, they can implement a new Constitution.

Which is what Cass Sunstein is itching to do.

katy on October 25, 2009 at 2:08 PM

Archimedes on October 25, 2009 at 2:03 PM

I know you posed the question rhetorically but I think that we ourselves are to blame. We haven’t taken our duties as citizens seriously for a long long time. We’ve naively trusted our elected Representatives to actually look out for our best interests and the best interests of the country. While we lived our lives trusting in government the Left has slowly and quietly taken over all of the institutions that serve to establish and protect our liberties with the single minded goal of controlling the ignorant masses. I accept my portion of the blame and will work the rest of my life to make amends.

The condition upon which God hath given liberty to man is eternal vigilance…

DerKrieger on October 25, 2009 at 2:08 PM

so Ed, would any citizen have standing to fight this?

ginaswo on October 25, 2009 at 1:54 PM

Whatever the validity of the challenge, the BC issue would seem to clearly depict that there would not be.

“Standing” to our present supremes would seem to be a priviledge, that is granted or not, according the arbitrary whimsy of the court. I cannot for the life of see how they arrived at any different finding other than, any “citizen” having his sacred right to vote would have standing if they thought there was reason to beleive fraud might be involved. From where I sit if you had cast a vote, you would have standing, period.

Jussayin!

Archimedes on October 25, 2009 at 2:10 PM

Ed, you should know better than to write posts about the law and the Constitution – not being a lawyer or a Constitutional scholar yourself it shows an incredible amount of arrogance on your part to assume that you know more than the academic ideologues that Proud Rino appeals to when he can’t come up with arguments of his own. Shame on you!

Sharke on October 25, 2009 at 2:11 PM

“the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions.”

Given that this is already the case, the argument would seem to have been lost some time ago.

notropis on October 25, 2009 at 2:11 PM

Defeating John McLaim by 52.5% to 47.5% is such an enormous mandate in itself it gives a guy, especially one who would be the Christ, the mandate to completely restructure our civilization.

Err, maybe not.

Really Right on October 25, 2009 at 2:11 PM

“With all due respect to the CBO, what exactly are Social Security and Medicare then ?”

Payroll taxes [SS & Medicare] are only applicable to earned income – wages & salaries. These taxes are not mandatory if one doesn’t incur earned income such as interest, dividends & capital gains.

ryan_anderson on October 25, 2009 at 2:19 PM

Federal mandates that apply to individuals as members of society are extremely rare. One example is the requirement that draft-age men register with the Selective Service System. The Congressional Budget Office (CBO) is not aware of any others imposed by current federal law.

The Selective Service registration has been controversial since its restart in 1980, but it doesn’t require that young men buy military uniforms each year as a consequence. It requires a one-time registration as a means to have a ready mobilization plan for national defense in an emergency — and drafts have long precedent in American history. Even a draftee’s time in the service, however, isn’t permanent, but a temporary service, usually two years.

This is all true, Ed, but then you see we have never had an Emperor before, now have we? Well not since 1776 anyway and George III was only a King.

MB4 on October 25, 2009 at 2:19 PM

Federal mandates that apply to individuals as members of society are extremely rare.

With all due respect to the CBO, what exactly are Social Security and Medicare then ? Two of the biggest entitlement programs in this country came about because of

nagee76 on October 25, 2009 at 2:06 PM

Social Security and Medicare were NOT created as ENTITLEMENT programs. These two programs were sold to the public as Safety net INSURANCE programs.

Yet again, the public education system has failed so miserably that people no longer are taught or read history.

Freddy on October 25, 2009 at 2:23 PM

Yet again, the public education system has failed so miserably that people no longer are taught or read history.

Freddy on October 25, 2009 at 2:23 PM

I caught part of something on the radio a couple of days ago that said while FDR was selling the public on SS as an insurance program, his lawyers were at the Supreme Court arguing that it was a tax. The point seemed to be that forcing the American people into an insurance program would be illegal but a tax would not be.

MB4 on October 25, 2009 at 2:29 PM

I find it tragically amusing that the Left during George Bush’s tenure constantly brayed about his “violating” the Constitution with warrantless surveillance of possible terrorism suspects, but now with serious, tangible threats to Constitutional limits on the President and Congress, they’re like “Constitution? What Constitution?”.

flipflop on October 25, 2009 at 2:30 PM

Family Courts routinely “mandate” (no, the actual word is “order,” but you understand the relevance, I hope) that non-custodial parent to pay for health insurance, and to do so whether the means exist for him (since 85% of payees are male, I use the proper gender) to do so or not under threat of incarceration. I don’t know the case that set up such an act was legal, but the USSC certainly turned around the “innocent until proven guilty” clause to one that sets the burden of inability to pay on the father (again, correct word defendant, but you get the relevance to the slant of this response). So precedent exists, I’m sure as high an appellate court as USSC. When Congress mandates citizens much purchase health insurance it will be a tough battle to deny them that authority, in either a conservative or liberal USSC because both sides have shown a total abandonment of reason when it comes to the constitution and Founders’ intent (clearly displayed on the Left by Roe v Wade and on the right by the case that allows property to be condemned and sold to developers as fair use of imminent domain).

That argument aside, the issue here is “liberty.” The term implies an individual’s right to self-determine certain inalienable choices, not just rights, and the Founders’ certainly discuss that individual freedom – determination – is essential to individual development. The communists (socialists is a just the new cover word for what is now considered, apparently, a politically incorrect term) will argue that when one’s individual actions affect the “well-being” (used by the Founders to imply national well-being, not collectivism), then so does their liberty. And while I disagree, and so many others do as well, with that reasoning, it is the prevailing thought and argument with our leaders.

And so Liberty is dead. The Great Experiment has failed.

klickink.wordpress.com on October 25, 2009 at 2:31 PM

DerKrieger on October 25, 2009 at 2:08 PM

Granted, but how that came to be is by the sheer complacency that comes with success. The sucess over communisn/collectivist tyranny won by Reagan allowed too many to forget his famous adage that liberty is forever but one generation from being lost.

With the fall of the Berlin wall, we condescendingly merely scoffed at extremely leftist profs indoctrinating our youth. We became over-confident and regarded them only as doddering eccentric academics, harmless as they had no real levers of power. However, now their minions who have assimilated their world views, now have risen to attaqin those levers.

I’ve posted this several times before in these threads, but it bears repeating. We should’ve taken to heart the words of one of the greatest oraters of all-time, Benjamin Disraeli:

“Wherever is found what is called a paternal
government, there is found state education.
It has been discovered that the best way to insure
implicit obedience is to commence tyranny in the nursery.”

If we should ever, and I have my doubts, manage to undo the havoc the Obama has wrought, bar him from further destruction of our way of life, we must re-take our educational systems. K-12 and beyond.

I recently returned to university to find upteen classes focusing on the drivel of Marx, Mao, Nietsche and every kind of nihlist. Yet not a one on the writings of Hume, Burke or Locke.

Even the classics which used to be favored by the leftist progressives like, Orwell, Huxley or Bradbury. When I asked fellow class-mates they had never even heard of them, let alone someone as prescient as Rand!

I find e ither a tad telling, or ironic, that Palin’s carreer was started at the school board level. She was onto somrthing with that.

Archimedes on October 25, 2009 at 2:33 PM

Again, pardon my typing skills. They are next to non-existent!

Effing Typos!

Archimedes on October 25, 2009 at 2:36 PM

It is the waste, fraud and abuse of the congress that has Americans up in arms. Spending Social Security monies and all others, then borrowing trillions to buy votes.ENOUGH!!!

tim c on October 25, 2009 at 2:39 PM

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States;

Any reasonable reading of the Constitution says that there IS no General Welfare Clause, as they wish there to be.

What this says is you may raise TAXES for certain reasons, one being the General Welfare… it is not a carte blanch phrase to give ultimat power to do anything…

This clause is about REASONS to Tax… and that is all.

Romeo13 on October 25, 2009 at 2:41 PM

So basically, using taxpayers dollars for anything other than the military and enforcing the laws of the Constitution are against the 10th Amendment.

As someone mentioned above Social Security and Medicaid taxes are illegal and so are all the pork barrel project spending.

moonsbreath on October 25, 2009 at 2:42 PM

With all due respect to the CBO, what exactly are Social Security and Medicare then ?

nagee76 on October 25, 2009 at 2:06 PM

You can opt out of the benefits from these programs, but you cannot opt out of paying for them.

The concept of an opt-out tax as an element of the current bill runs completely counter to the above.

As for the rest, you are right — the cows were let out of the barn long ago. It’s just a matter of how many cows the pasture will support before the cows become emaciated and die.

unclesmrgol on October 25, 2009 at 2:43 PM

Any reasonable reading of the Constitution says that there IS no General Welfare Clause, as they wish there to be.

What this says is you may raise TAXES for certain reasons, one being the General Welfare… it is not a carte blanch phrase to give ultimat power to do anything…

This clause is about REASONS to Tax… and that is all.

Romeo13 on October 25, 2009 at 2:41 PM

There’s no debts clause either. Some words in the Constitution have meanings known to everyone who read the document. Whatever the General Welfare was, it has somehow become expanded over time.

This clause was pointed out by Ed earlier as a justification for the Air Force. There’s no Air Force clause in the constitution (on an Army and Navy clause), but somehow the Air Force, the FBI, the CIA, the NSA, the NGA, and a whole bunch of other agencies related to our defense and general welfare exist.

By your reading, all those are unConstitutional. I disagree.

unclesmrgol on October 25, 2009 at 2:47 PM

With all due respect to the CBO, what exactly are Social Security and Medicare then ?

nagee76 on October 25, 2009 at 2:06 PM
You can opt out of the benefits from these programs, but you cannot opt out of paying for them.

The concept of an opt-out tax as an element of the current bill runs completely counter to the above.

As for the rest, you are right — the cows were let out of the barn long ago. It’s just a matter of how many cows the pasture will support before the cows become emaciated and die.

unclesmrgol on October 25, 2009 at 2:43 PM

Indeed so!

Several munipalities in Texas (figures) have done precisely that. I am not sure of the particulars, but I beleive that whatever they have adopted in it’s stead, unlike our social security system, is solvent!

Archimedes on October 25, 2009 at 2:50 PM

With all due respect to the CBO, what exactly are Social Security and Medicare then ?

nagee76 on October 25, 2009 at 2:06 PM

History lesson… in 1937 when the Supremes were looking at this, Roosevelt threated to pack the court… ie make the court larger and appoint judges who would side with him to MAKE this Constitutional… Supremes caved.

Romeo13 on October 25, 2009 at 2:51 PM

Forcing Americans to enroll in healthcare insurance or be fined and/or imprisoned is a step away from our individual rights and economic freedom that were a major reason for our revolution and the efforts of MLK and his resulting assassination. The constitutionality of this mandate for insurance is very suspect and I find in my discussions and correspondence with my congressional delegation that its constitutionality is not even a consideration. For some reason they do not see this issue as impacting their oath to uphold the Constitution. I hold my oath to protect and defend our Constitution sacred and find this attitude by congress to be beyond arrogance.

amr on October 25, 2009 at 2:52 PM

repealing the 17th amendment would help fix these kind of power grabs. the states losing their representation at the federal level was a progressive movement scheme to start consolidating power. that amendment alone made it all possible.

chasdal on October 25, 2009 at 2:56 PM

This clause was pointed out by Ed earlier as a justification for the Air Force. There’s no Air Force clause in the constitution (on an Army and Navy clause), but somehow the Air Force, the FBI, the CIA, the NSA, the NGA, and a whole bunch of other agencies related to our defense and general welfare exist.

By your reading, all those are unConstitutional. I disagree.

unclesmrgol on October 25, 2009 at 2:47 PM

OK, then by your interpretation, we can take any two word clause of the Constitution, out of context, and use it.

Therefore… there are two clauses I’ll put together… the phrase “The People” and then “impeachment” and therefore get to the point where the People can Impeach the President.

And on the Air Force question? You notice the Marines are part of the Navy? Why? Because they USED to actualy read teh Constitution and follow it. Notice that origionaly it was the ARMY Air Corps?

Between about 1900, and up through the late 40s they seriously stopped reading the Constitution with any Common Sense.

Romeo13 on October 25, 2009 at 2:56 PM

unclesmrgol on October 25, 2009 at 2:47 PM

I would also point out that is took a Constitutional amendment to make Alchohol illegal (an intoxicating substance)… yet somehow it only takes a Federal Law to make Pot illegal (an intoxicating substance)…

That is a clear change in how we the Fed Gov, and Courts, saw the Constitution…. and also happened in that same timeframe…

Romeo13 on October 25, 2009 at 2:59 PM

The problem is and has been for the last 60 years or so the commerce clause. Do away or limit that power and the federal government will again be leashed. Reagan should have pushed for consitutional amendments to limit the commerce clause and term limits during the hight of his power.

Obama instead of a healthcare bill should have pushed for a consitutional amemdment that specifically calls for healthcare if that is what he wanted.

Fillibusters in Senate are there for a reason so that a small majority or large minority can not say “i won” and push thru laws that the vast majority of Americans do not support.

unseen on October 25, 2009 at 3:10 PM

Just wait until we have a mandate to eat broccolli.

Dhuka on October 25, 2009 at 3:10 PM

repealing the 17th amendment would help fix these kind of power grabs. the states losing their representation at the federal level was a progressive movement scheme to start consolidating power. that amendment alone made it all possible.

chasdal on October 25, 2009 at 2:56 PM

Not many even know that it was ever any different than today, taking the elections of US Senators away from state legislators was a critical piece in the stripping states of their rights and perogitives.

But I am not even sure if it would feasible to abolish it or not. If it is possible, it woud be a step in the right direction.

Archimedes on October 25, 2009 at 3:10 PM

The government may offer universal health care insurance but no one who is free needs to accept it.

But, with its massive advantages (to tax, to print money and to imprison) over private insurers, they may also ultimately drive them out of the health coverage field, leaving no other option but government single-payer care.

Which is Obama’s and Pelosi’s goal.

Then “freedom” becomes meaningless.

Since you are only “free” to accept what the government gives.

Government control of this vast an area of the economy is the stepping stone to tyranny.

Those who do not oppose it aid and abet it.

profitsbeard on October 25, 2009 at 3:11 PM

if every adult volunteered 20 hours of community service each month. Does that give Congress the Constitutional authority to compel every citizen 18 and over to spend four or five hours every week working in a homeless shelter or picking up trash on the side of the road?

That is almost what Obama as proposed and stated he would do; only worse. His original proposal was to require all school age children to do community service. If I recall it was 50 hours per school year and was tied to the child’s advancement to the next grade. He later backed up a bit and excluded the lowest elementary children. This is community service, which we usually reserve as a punishment for those that break the law was. It was not to be under parental supervision but rather the supervision of the government. At the time I recall be really concerned because it looked like Acorn would be that supervisioal authority. If so it would have been a child molestors Christmas, or worse as we now know. The stated purpose was the elimination of raceism, but the goal looked more like a plan to brainwash the children. For college age students this was to be 100 hours of community service which would pay for $4000 of tution for the year.

He also had this plan for a citizens army that was as large and well equiped as the military. There are not many reasons a citizens army, answering only to Obama; that could compete if not challege our military forces; would be needed. Of course we are seeing his creation of a shadow government that is answerable only to him today. If he was able to get our children away from their parents he would be able to insure that the citizens army would be loyal to him in the future. Taken in that light, his goals do not support that he plans to only be in office for eight years or under any authority other than his own.
Haven’t heard much about his community service plans lately, but they do not appear to be totally abandoned; rather set aside since things have not quiet worked out as he wants. He needs the creation of nationalize medicine which will be the foundation for socialism and method to enter into every aspect of our lives and government. The Hondurian situaition shows that he has a concern with the use of a constitution in stopping a change to socialism. As we well know, he is not ignorant of our constitution, but has not been willing to be limited by it. That could lead to speculatiuon that he has plans to remove it in the future or change it to support his purposes in much the same way that his friend, Chavez has done.

Franklyn on October 25, 2009 at 3:13 PM

Just wait until we have a mandate to eat broccolli arugula.

Dhuka on October 25, 2009 at 3:10 PM

FIFY : )

publiuspen on October 25, 2009 at 3:14 PM

The problem is and has been for the last 60 years or so the commerce clause. Do away or limit that power and the federal government will again be leashed. Reagan should have pushed for consitutional amendments to limit the commerce clause and term limits during the hight of his power.

Obama instead of a healthcare bill should have pushed for a consitutional amemdment that specifically calls for healthcare if that is what he wanted.

Fillibusters in Senate are there for a reason so that a small majority or large minority can not say “i won” and push thru laws that the vast majority of Americans do not support.

unseen on October 25, 2009 at 3:10 PM

While the 10th amendment would seem the path to our liberation from statist nannyism, it runs smack into the obstacle of stare decicis. The common fallback to justify and uphold all manner of of unconstitutionalities.

Prying the supremes from this judicial cop-out is near insurmountable. It is why I have my doubts about repealing the 17th.(above)

Archimedes on October 25, 2009 at 3:17 PM

“It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood”……….James Madison

Now some one tell me how Madison knew there would be 1500 pages plus in this health care bill?

Rovin on October 25, 2009 at 1:47 PM

Apparently it was a well worn political trick used back in the days of the monarchy. Only problem is that we peons know how to read. Why else would they be working to indoctrinate our children.

BetseyRoss on October 25, 2009 at 3:17 PM

Just wait until we have a mandate to eat broccolli.

Dhuka on October 25, 2009 at 3:10 PM

That would be my snapping point. :)

katy the mean old lady on October 25, 2009 at 3:28 PM

you may be right, but they don’t care. Its a technicality to be overcome. I do have this question, where do groups like the ACLU stand on the government gaining such power over the individual?

rob verdi on October 25, 2009 at 1:37 PM

Surely, you jest.

Johan Klaus on October 25, 2009 at 3:32 PM

Now some one tell me how Madison knew there would be 1500 pages plus in this health care bill?

Rovin on October 25, 2009 at 1:47 PM

“Deja vu, all over again”.

Johan Klaus on October 25, 2009 at 3:34 PM

“The government has never required people to buy any good or service as a condition of lawful residence in the United States.”

How’s that ‘Hope and Change’ working out for ‘ya…?

Seven Percent Solution on October 25, 2009 at 3:45 PM

What’s all this loose talk about the Constitution.

Obama has already pointed out how flawed that document is.

It’s his mission to correct the flaws.

And fortunately for us, he hasn’t worn out his brain by doing anything else in his life.

notagool on October 25, 2009 at 3:59 PM

Constitution, schmonstitution.

Mason on October 25, 2009 at 4:36 PM

unclesmrgol on October 25, 2009 at 2:47 PM

I find it interesting that many of the same people who defend Obama’s eligibility and the Constitutional twisting that goes along with that, are the same ones defending the Democrats’ liberal interpretation of the Constitution on this issue as well.

I don’t think this is a coincidence.

2Brave2Bscared on October 25, 2009 at 4:37 PM

The government has never required people to buy any good or service as a condition of lawful residence in the United States.

Picky, picky, picky.

ncborn on October 25, 2009 at 4:49 PM

Madison? Jefferson? Pee-shaw! Obama wasn’t even born when they were around, so anything they said doesn’t count (in the World According to Obama — everything important starts after he was born & he can’t be held accountable for those things, dontchaknow). And Obama is the SMARTEST person to EVER hold the office — that’s a true fact made up by the Obots.
/sarc

Dark Star on October 25, 2009 at 4:50 PM

Social Security and Medicare were NOT created as ENTITLEMENT programs. These two programs were sold to the public as Safety net INSURANCE programs.

Freddy on October 25, 2009 at 2:23 PM

At least the SS system worked as intended. Even the end of the Baby Boom wouldn’t necessarily have spelled complete disaster.

Unfortunately, the funds were looted long ago by greedy politicians who just couldn’t stand to see money sitting around not being wasted! &%#@$!

Dark-Star on October 25, 2009 at 5:05 PM

At least the SS system worked as intended. Even the end of the Baby Boom wouldn’t necessarily have spelled complete disaster.

Dark-Star on October 25, 2009 at 5:05 PM

It might have lived, but it is still a failure of a program. Soviet Communism lived for decades, too. Social Security was a monumental waste of money, even in the best of times. It never returned anything close to the same as private funds and burnt up umpteen trillions of dollars in waste, fraud, and inefficiency. In addition to that, the future of our entire monetary system has become wedded to the fate of social security, unlike private insurance contracts.

All in all, Social Security has been a miserable failure, has been outperformed by just about every other sort of investment scheme, and has just about destroyed our currency, which means it has just about destroyed our federal government. Nothing was worth this. If people had been able to keep their money and take care of themselves, then the US would have been immeasurably richer right now. Social security cut into the non-inflationary growth of wealth in a large way and that gigantic flow of stolen money that ran through the system served to pervert our federal government at the same time.

progressoverpeace on October 25, 2009 at 5:16 PM

When one sees themselves as a perpetual “Victicrat”, then one needs no freedom to choose.

elclynn on October 25, 2009 at 5:20 PM

ProudRinoPie- please overcome this. That is if you can read or comprehend as Madison himself understood that if the welfare clause is that open and loose then why stipulate limitations? That would make no sense.

If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions. (James Madison, Letter to Edmund Pendleton, January 21, 1792 Madison 1865, I, page 546)

CWforFreedom on October 25, 2009 at 5:24 PM

OK, then by your interpretation, we can take any two word clause of the Constitution, out of context, and use it.

Therefore… there are two clauses I’ll put together… the phrase “The People” and then “impeachment” and therefore get to the point where the People can Impeach the President.

Romeo13 on October 25, 2009 at 2:56 PM

It takes quite a bit of overreaching on your part to convert my comment into “take any two word clause of the Constitution, out of context…”

The entirety of Article I, section 8, with the words in sequential order, form the basis of my comment. As the only two types of forces which existed at the time the Constitution was written were the land and sea forces, represented respectively by the Army and the Navy. Note that the clauses respecting “armies” (note the plural) and the “navy” indicate that the navy has no time limit on the allocations Congress may make in it’s behalf, while the army is limited to a two year limit on bills for its funding.

So, given that the word “armies” is plural, if we were to rename the Air Force to the Air Army, everything would be ok by your reading, right? In fact, if we were to rename it to the Air Navy, nominally put it under the command of the Navy (and call all of its assets airships) we could get around that pesky every-two-year clause completely.

So, if we ever need a space based military force, we can, to make you happy, call it either the United States Space Navy or the United States Space Army and everything will be peachy-keen. Or am I getting things wrong and you are really saying that we need a Constitutional amendment to allow for the provision of any space-going force whatsoever?

As for your statement about alcohol, I submit that a Constitutional amendment was overkill, and that regulation of all drugs and foods derive from this same clause, coupled with the commerce clauses. In other words, nothing was needed other than a law of congress to ban or regulate the production or transport of alcohol.

unclesmrgol on October 25, 2009 at 6:09 PM

The Selective Service registration has been controversial since its restart in 1980, but it doesn’t require that young men buy military uniforms each year as a consequence. It requires a one-time registration as a means to have a ready mobilization plan for national defense in an emergency — and drafts have long precedent in American history. Even a draftee’s time in the service, however, isn’t permanent, but a temporary service, usually two years.

But it is a mandate. Even as a 20+ year active duty veteran (i.e. I’m getting a retirement), I’ve been required to provide my Selective Service Registration number for government job applications and security clearances.

Furthermore, it is a mandate without merit. This isn’t WWII. By the time those who enrolled under Selective Service were identified, tracked down, and trained, months would have elapsed. If it takes months, it is not a ready mobilization plan but a long-term strategy to enlist troops if the standing forces are unable to keep up with demand. It is also sexist and discriminatory since it does not include females when few jobs in the military are not open to females (not the case in 1980).

highhopes on October 25, 2009 at 6:11 PM

Constitution, schmonstitution.

Mason on October 25, 2009 at 4:36 PM

But isn’t that a great picture of Robert C. Byrd on the homepage of this thread?

highhopes on October 25, 2009 at 6:13 PM

We are going be saved by the tenthers?

Dr Evil on October 25, 2009 at 6:55 PM

unclesmrgol on October 25, 2009 at 2:47 PM

Sorry if I was confusing… but I switched topics half way thorugh…

The first part was pointed at the combination of General Welfare and Commerce clauses needed to make “healthcare reform” Constitutional…. ie… you have to be able to say that you can force someone to buy somthing for the General Welfare…

Second part was pointed at the Air Force…

Key is that instead of AMENDING the Constitution, you just want to ignore it. It would be a simple amendment, if we wanted a seperate Air Force… and then the People and States would have a say in it…

Instead, you IGNORE it… ie reinterpret it to somthing it never said.

The Constitution is a Contract between the people, States, and the Federal Gov… and it says who has what Rights, and who has what POWERS…

We have been willing to let ONE group involved in that Contract, ie the Fed, to IGNORE what is said in the contract, and to “reinterpret” it out of all origional meaning…. instead of renegotiating the Contract (ie Amending) it so the other groups involved in the Contract, have a SAY in that contract.

Why? Because the States lost all their power in the Civil War, and the People have been educated to believe they have no real power…

Romeo13 on October 25, 2009 at 7:07 PM

It is DAMNED pathetic that so few can actually READ the Constitution nor know the actual history of the Constitution.
I see one wrong and false statement after another on this subject on this post.
Sorry, NO ONE gets to interpret the Constitution, it’s been done quite adequately by those who wrote the Constitution.

nelsonknows on October 25, 2009 at 7:09 PM

As for your statement about alcohol, I submit that a Constitutional amendment was overkill, and that regulation of all drugs and foods derive from this same clause, coupled with the commerce clauses. In other words, nothing was needed other than a law of congress to ban or regulate the production or transport of alcohol.

unclesmrgol on October 25, 2009 at 6:09 PM

Funny how the closer we get historicly to when the Constitution was ratified, the more they followed it.

Funny how THEY thought they needed a Constitutional Amendment to do it… but soon ignored the Precedent…

Romeo13 on October 25, 2009 at 7:10 PM

CWforFreedom on October 25, 2009 at 5:24 PM

You might also add the quotes;
“If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may appoint teachers in every State, county and parish and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision of the poor; they may undertake the regulation of all roads other than post-roads; in short, every thing, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress… Were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited Government established by the people of America.” James Madison
AND;
“I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on the objects of benevolence, the money of their constituents.” James Madison

nelsonknows on October 25, 2009 at 7:13 PM

Social Security and Medicare were NOT created as ENTITLEMENT programs. These two programs were sold to the public as Safety net INSURANCE programs.

Freddy on October 25, 2009 at 2:23 PM

Both Social Security and Medicare are in FACT, unconstitutional, Congress was never granted the authority by the Constitution to pass either and both are usurpations of power by leftist Congress.

nelsonknows on October 25, 2009 at 7:18 PM

Again with stare decisis? The SCOTUS was NEVER granted the authority to translate or interpret the Constitution. The duty of the SCOTUS is to ENFORCE the Constitution.

nelsonknows on October 25, 2009 at 7:22 PM

We have a ton of unconstitutional “laws” now thanks to FDR and co.

Mojave Mark on October 25, 2009 at 8:54 PM

That is if you can read or comprehend as Madison himself understood that if the welfare clause is that open and loose then why stipulate limitations? That would make no sense.

If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions. (James Madison, Letter to Edmund Pendleton, January 21, 1792 Madison 1865, I, page 546)

SCOTUS took this question upon itself long ago.

From United States v. Butler, 297 U.S. 1 (1936)

The Congress is expressly empowered to lay taxes to provide for the general welfare. Funds in the Treasury as a result of taxation may be expended only through appropriation. Article 1, 9, cl. 7. They can never accomplish the objects for which they were collected, unless the power to appropriate is as broad as the power to tax. The necessary implication from the terms of the grant is that the public funds may be appropriated ‘to provide for the general welfare of the United States.’ These words cannot be meaningless, else they would not have been used. The conclusion must be that they were intended to limit and define the granted power to raise and to expend money. How shall they be construed to effectuate the intent of the instrument?

Since the foundation of the nation, sharp differences of opinion have persisted as to the true interpretation of the phrase. Madison asserted it amounted to no more than a reference to the other powers enumerated in the subsequent clauses of the same section; that, as the United States is a government of limited and enumerated powers, the grant of power to tax and spend for the general national welfare must be confined to the enumerated legislative fields committed to the Congress. In this view the phrase is mere tautology, for taxation and appropriation are or may be necessary incidents of the exercise of any of the enumerated legislative powers. Hamilton, on the other hand, maintained the clause confers a power separate and distinct from those later enumerated is not restricted in meaning by the grant of them, and Congress consequently has a substantive power to tax and to ap- [297 U.S. 1, 66] propriate, limited only by the requirement that it shall be exercised to provide for the general welfare of the United States. Each contention has had the support of those whose views are entitled to weight. This court has noticed the question, but has never found it necessary to decide which is the true construction. Mr. Justice Story, in his Commentaries, espouses the Hamiltonian position. 12 We shall not review the writings of public men and commentators or discuss the legislative practice. Study of all these leads us to conclude that the reading advocated by Mr. Justice Story is the correct one. While, therefore, the power to tax is not unlimited, its confines are set in the clause which confers it, and not in those of section 8 which bestow and define the legislative powers of the Congress. It results that the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.

But the adoption of the broader construction leaves the power to spend subject to limitations.

As Story says: ‘The Constitution was, from its very origin, contemplated to be the frame of a national government, of special and enumerated powers, and not of general and unlimited powers.’ 13

Again he says: ‘A power to lay taxes for the common defence and general welfare of the United States is not in common sense a general power. It is limited to those objects. It cannot constitutionally transcend them.’ 14

That the qualifying phrase must be given effect all advocates of broad construction admit. Hamilton, in his [297 U.S. 1, 67] well known Report on Manufactures, states that the purpose must be ‘general, and not local.’ 15 Monroe, an advocate of Hamilton’s doctrine, wrote: ‘Have Congress a right to raise and appropriate the money to any and to every purpose according to their will and pleasure? They certainly have not.’ 16 Story says that if the tax be not proposed for the common defense or general welfare, but for other objects wholly extraneous, it would be wholly indefensible upon constitutional principles. 17 And he makes it clear that the powers of taxation and appropriation extend only to matters of national, as distinguished from local, welfare.

As elsewhere throughout the Constitution the section in question lays down principles which control the use of the power, and does not attempt meticulous or detailed directions. Every presumption is to be indulged in favor of faithful compliance by Congress with the mandates of the fundamental law. Courts are reluctant to adjudge any statute in contravention of them. But, under our frame of government, no other place is provided where the citizen may be heard to urge that the law fails to conform to the limits set upon the use of a granted power. When such a contention comes here we naturally require a showing that by no reasonable possibility can the challenged legislation fall within the wide range of discretion permitted to the Congress. How great is the extent of that range, when the subject is the promotion of the general welfare of the United States, we need hardly remark. But, despite the breadth of the legislative discretion, our duty to hear and to render judgment remains. If the statute plainly violates the stated principle of the Constitution we must so declare. [297 U.S. 1, 68] We are not now required to ascertain the scope of the phrase ‘general welfare of the United States’ or to determine whether an appropriation in aid of agriculture falls within it.

Further cases expanded upon Congress’ broad discretion to determine what “General Welfare” means. See, Steward Machine Co. v. Davis, 301 U.S. 548 (1937); Helvering v. Davis, 301 U.S. 619 (1937)

In Helvering, Justice Cardozo, writing for the Court, stated:

The discretion [to decide whether axing and spending advances the general welfare] belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment . . . . Nor is the concept of the general welfare static. Needs that were narrow or parochial a century ago may be interwoven in our day with the well-being of the Nation.” (emphasis added).

The above is why challenges based on Congress’ determination that spending is part of the General Welfare, are essentially doomed to failure.

Revenant on October 25, 2009 at 9:02 PM

So there’s already a ruling against this? And they are still trying to push it through?

IIRC The Supreme Court is more Conservative now than it was in 1993.

What am I missing here?

- The Cat

MirCat on October 25, 2009 at 9:55 PM

When I was younger and go to the National Archives and view the Constituion, I would feel quite moved that his mere piece of paper protected us from tyranny.

Now I wonder if it can save us from Compassionate Fascism.

Dhuka on October 25, 2009 at 11:52 PM

Supreme Court rulings on fallacious opinion that the court is ABOVE the Constitution, Congress that defies the Constitution and a usurping “President” who believes the Constitution is “highly flawed” and the “1st and 2nd Amendments were obsolete soon after they were ratified”, is the prime reason the American people will eventually have two choices; either revolt and take their country and their Constitution back, or become thralls to tyranny.

nelsonknows on October 26, 2009 at 12:50 AM

I think the better Madison quote comes from Federalist No. 41, in which he responds to the problems brought up by a number of Anti-Federalists:

Some who have not denied the necessity of the power of taxation have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed that the 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,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.

Had no other enumeration or definition of the powers of the Congress been found in the Constitution than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms “to raise money for the general welfare.”

But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing had not its origin with the latter.

The objection here is the more extraordinary, as it appears that the language used by the convention is a copy from the Articles of Confederation. The objects of the Union among the States, as described in article third, are “their common defense, security of their liberties, and mutual and general welfare.” The terms of article eighth are still more identical: “All charges of war and all other expenses that shall be incurred for the common defense or general welfare and allowed by the United States in Congress shall be defrayed out of a common treasury,” etc. A similar language again occurs in article ninth. Construe either of these articles by the rules which would justify the construction put on the new Constitution, and they vest in the existing Congress a power to legislate in all cases whatsoever. But what would have been thought of that assembly, if, attaching themselves to these general expressions and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and general welfare? I appeal to the objectors themselves, whether they would in that case have employed the same reasoning in justification of Congress as they now make use of against the convention. How difficult it is for error to escape its own condemnation!

The point brought up is that there are those who will ignore the semi-colon or otherwise misconstrue the actual verbiage in light of expedient legislation. The argument is not one of the logic involved, which those same Anti-Federalists actually point out, but one of human nature and the nature of governments over time moving away from restricted rights for government unless there are some very and extremely harsh checks on that power put in place.

Hamilton’s goal of a ‘robust role’ for government in commerce would be addressed by the veto of the US National Bank Veto of 1832, which addresses the very concerns about stare decisis, powers and limitations on government:

It is maintained by the advocates of the bank that its constitutionality in all its features ought to be considered as settled by precedent and by the decision of the Supreme Court. To this conclusion I can not assent. Mere precedent is a dangerous source of authority, and should not be regarded as deciding questions of constitutional power except where the acquiescence of the people and the States can be considered as well settled. So far from this being the case on this subject, an argument against the bank might be based on precedent. One Congress, in 1791, decided in favor of a bank; another, in 1811, decided against it. One Congress, in 1815, decided against a bank; another, in 1816, decided in its favor. Prior to the present Congress, therefore, the precedents drawn from that source were equal. If we resort to the States, the expressions of legislative, judicial, and executive opinions against the bank have been probably to those in its favor as 4 to 1. There is nothing in precedent, therefore, which, if its authority were admitted, ought to weigh in favor of the act before me.

If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.

But in the case relied upon the Supreme Court have not decided that all the features of this corporation are compatible with the Constitution. It is true that the court have said that the law incorporating the bank is a constitutional exercise of power by Congress; but taking into view the whole opinion of the court and the reasoning by which they have come to that conclusion, I understand them to have decided that inasmuch as a bank is an appropriate means for carrying into effect the enumerated powers of the General Government, therefore the law incorporating it is in accordance with that provision of the Constitution which declares that Congress shall have power ” to make all laws which shall be necessary and proper for carrying those powers into execution. ” Having satisfied themselves that the word “necessary” in the Constitution means needful,” “requisite,” “essential,” “conducive to,” and that “a bank” is a convenient, a useful, and essential instrument in the prosecution of the Government’s “fiscal operations,” they conclude that to “use one must be within the discretion of Congress ” and that ” the act to incorporate the Bank of the United States is a law made in pursuance of the Constitution;” “but, ” say they, “where the law is not prohibited and is really calculated to effect any of the objects intrusted to the Government, to undertake here to inquire into the degree of its necessity would be to pass the line which circumscribes the judicial department and to tread on legislative ground.”

The principle here affirmed is that the “degree of its necessity,” involving all the details of a banking institution, is a question exclusively for legislative consideration. A bank is constitutional, but it is the province of the Legislature to determine whether this or that particular power, privilege, or exemption is “necessary and proper” to enable the bank to discharge its duties to the Government, and from their decision there is no appeal to the courts of justice. Under the decision of the Supreme Court, therefore, it is the exclusive province of Congress and the President to decide whether the particular features of this act are necessary and proper in order to enable the bank to perform conveniently and efficiently the public duties assigned to it as a fiscal agent, and therefore constitutional, or unnecessary and improper, and therefore unconstitutional.

Without commenting on the general principle affirmed by the Supreme Court, let us examine the details of this act in accordance with the rule of legislative action which they have laid down. It will be found that many of the powers and privileges conferred on it can not be supposed necessary for the purpose for which it is proposed to be created, and are not, therefore, means necessary to attain the end in view, and consequently not justified by the Constitution.

Here, some 43 years on from Federalist 41, we have the outlay of powers and how they work between the States and the federal government and within the federal government itself.

First off is that precedent, both SCOTUS and legislative, is a dangerous source of authority especially when examining the constitutional powers granted to the federal government. You do not ignore previous decisions, but they must not trump reasoning on constitutionality.

Second each arm of the federal government has separate and independent powers, not co-equal powers. This is forgotten and misconstrued in the modern day, but these separate powers were designed as independent checks and balances on federal government so that each branch has its review of constitutionality independent of the other branches. Congress is to create laws that are constitutional, the President has the veto power to reject laws that are unsound, improper, unnecessary or unconstituional. The SCOTUS is given grant to judge on the constitutional basis of laws and strike down those not adhering to the constitution. These are in no way equal powers, but separate and independent powers. So just as it may be within the scope of power of Congress to do something, it must be judged first by the President as necessary and proper exercise of powers, and judged by the SCOTUS on those grounds examining their independent powers in that judgment.

Third and not to be forgotten, is that there needs to be a general assent to legislation from the States and the people, and acknowledging that such legislation is desired from those levels and can be executed via necessary and proper laws that adhere to the constitution.

Thus with health care and the powers granted to government we hear rejoinders on:

- Precedent – A dangerous source of authority regarding constitutionality as prior judgments may not have taken the full scope and power of the constitution into consideration as it regards other areas of legislation and law. When judging the constitutionality of a law, the restricted scope of prior decisions may not represent a true reading of those power grants for a particular statute. In health care and similar areas there are few arguments utilizing Amendments IX and X, and if the court has been remiss in the past in considering those, than those grounds can serve as a basis for new suits on legislation to call into question the necessary and proper part of powers granted to the government when enacting laws.

- Necessary and Proper – Even granted that the federal government may have a role in health care, can Congress create a necessary and proper law that adheres to its constitutional restrictions as to being wise and fiscally sound, and having the general support of the States and the people? These are not minor considerations and no election changes the fact that the people and States have been indifferent to passing this question on to the federal level. Thus, without that clamor and, indeed, the overwhelming majority not having expressed a want of federal intervention, there is little that Congress can stand on. Even appealing to precedent in this case must take into consideration all of the Congresses that have brought up this question, all the States that have considered it, and the general view of the electorate separately. Precedent does not lay basis for good law without these legs to stand on via precedent: the SCOTUS is not alone in having a history, and all relevant history must be examined as part of new legislation.

- Powers and Privileges – Those organs that Congress creates are made via the powers it has in the constitution. If the powers granted are not necessary to the purpose involved, then Congress cannot create such an organ of the government as it does not have the power to do so. If created without power to do a purpose, then it is not a constitutional object of government nor a means to achieve the ends of Congress. This is a question that must be established in light of mixed precedent, necessity, propriety and the actual extent of the power grant to the federal government. Just because legislation is expedient and towards good ends, that does not give it necessary and proper standing within the constitution, nor power to Congress to enact it.

An unlimited interpretation of ‘general welfare’ wipes all question of limited power away and reduces the Nation to a state of tyrannical government. If the form and function of these powers were so sweeping, the constitution would say so, and yet it defines the exact opposite, particularly when examined in Amends. I, II, V, IX and X. The specific things the federal government cannot do are joined by a general rule that what is not given to the federal is retained by the States and the people. Do note that the understanding of power functions is outlined in Law of Nations, specifically mentioned in the constitution and understood by the founders so that when power grants are seen in the document, it is easy to examine the similar sections of Law of Nations and see what the scope and meaning of the powers are (as witness George Washington’s Neutrality Proclamation) and then examine how those scopes of powers continue as grants from the people to the federal government. From that additional questions in regards to security functions and their organs (CIA, NGA, NSA, etc.) are to be examined in the Commander of the Armies and the Navies power as they are, at heart, military functions for National Security (there may be too many of them, yes, but that is a different argument). Likewise to uphold the laws of the US, Congress has created the FBI for general laws and other organs for things like Immigration and Naturalization. Something like USGS and NOAA come under the part of mapping and charting necessary for military purposes and for understanding the scope and breadth of the Nation. Something like the Dept. of Agriculture, Education, Energy and so on are less viable on these grounds and less accountable as they have fewer functions directly tied to constitutional grants and could, and probably should, receive review on the necessary and proper functions, as well as if these are sound bodies to have or even wanted by the States and the people.

Healthcare under federal regulation? Is it necessary and proper? Is there an established hue and cry over many years for it from the States AND the people? Can it be done within the power grants? Can it be made fiscally sound? Have established precedents considered all aspects of such a power and the restrictions placed on them by the constitution and amendments?

To date I have no good answers that lead to ‘yes’ on these.

YMMV.

ajacksonian on October 26, 2009 at 9:27 AM

ajacksonian on October 26, 2009 at 9:27 AM

Very well done. I really liked your whole post, with the minor exception of your hypothetical concession to the notion that the federal governmetn might have a role in health care.

I would also point out that in discussions of federal power, one cannot carry out a full analysis without addressing the fact that almost all social issues were left to the states and allowed for anyone to find a state that fashioned its laws and benefits to their liking. Further, along this line, is that states can be trusted to deal with social issues as states do not have the ability to create or print money and destroy our national monetary system (the basis of our federal government, and without which our federal government would cease to exist). The federal government, on the other hand, has the ability to create money and is, therefore, a bottomless pit for which any runaway programs will lead to the ultimate disaster. We can survive bankrupt states (and those states earn their own bankruptcies) but we cannot survive a bankrupt federal government.

One other aspect of the overarching problem comes from the federal courts forcing states on issues that fall outside of the powers of the federal government. This interference has been accepted far too easily and quietly, and has done even more damage than Congressional enchroachment on the state’s powers have done.

Thanks again for your very well thought out, and well-written, post, ajacksonian.

progressoverpeace on October 26, 2009 at 2:50 PM

So what happens if, instead of requiring people to buy insurance, Congress just increases payroll taxes and expands Medicare to cover everybody? It would take a lot of guts for Congress to pass that, but in essence it’s not different from the Public Consumer Option (as Nancy pelosi would have it).

I agree with Ed’s arguments, but in order to make them stick, we’ll need to declare Social Security and Medicare unconstitutional. That would be fine with me, but I doubt that it’ll happen. It’s like wishing the Supreme Court would give up on judicial review or creating law by judicial fiat. I’m not holding my breath.

flataffect on October 26, 2009 at 6:57 PM