Archive for September 20th, 2009

 I notice you did not answer Hippieprof’s question in the previous thread:

Honestly, I didn’t see it.  Please refer him to this answer so I don’t have to repeat myself.

“So – that old “general welfare” clause in Article 1 does not apply to health care? “

No, it doesn’t.  Any reasonably intelligent lawyer in my tribe can concoct a theoretical legal argument to support a conclusion that they want to reach.  It simply does not change the fact that they have to mystically ascertain something that is not there.  Even members of my tribe with lower than average intellects realize that the law is not served by this twisting and torture of the phraseology to confer a constitutional status upon a desired result, as demonstrated by this dimmer than average ‘constitutional scholar’:  (starting around 3:45)
(“you could craft theoretical justifications for it legally…”)
I take this as an affirmation of my point about strict constructionism being the only honest method of interpretation, because the “living document” tack takes you down the road of subjective standards employed by unelected jurists who use those standards to discover heretofore unknown and unrecognized law in the body of what were the formerly objective standards set forth in the Constitution. If you want to do something that is not constitutional, then use the existing available process to change that. Its called “Amendment”, and unlike judicial activism, which is an affront to the republican (small ‘r’) nature of our society, it allows for a majority of the society to agree with you, rather than empowering a minority to impose its will on the rest of us through judicial usurpation of legislative power.

As I have said before if you want amendments for everything not explicitly mentioned in the Constitution than we’re looking at legislative gridlock and hundreds of Constitutional amendments.

Or not.  You see, the reason for specifically enumerated powers was the belief that anything not specifically enumerated was rightfully the purview of the states.  That is the reason for Tenth Amendment.  The only exception would be the Necessary and Proper clause, which gives Congress the necessary authority to make the laws necessary to carry out its enumerated powers.  When those the powers not delegated to the Congress are properly handled at the state level, then there is no need for Amendment, but, if there is a perception that something should rightly be under the authority of the federal government, then it can be brought as an Amendment, and if enough people agree, then it can be made so. 

The Congress was not designed to be efficient.  Gridlock was to be preferred over compromise, which typically results in bad legislation.  Only a progressive, immersed and seasoned in the fallacious belief that “Something Must Be Done!!!” is preferable to debate…real debate, not what passes for it these days, deliberation, and the passage of good and necessary laws.

“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”

What say you BiW?

What say I?  I say you aren’t reading very carefully.  This clause grants Congress the power to tax and spend, NOT the power to make laws for “the General Welfare.”

And before you try to dodge with a cry of “Semantics!”, consider carefully that the gentlemen who wrote this document were very careful with their wording.  Again, this clause means what it says.
[You might also spend some time considering why these careful and deliberate authors did not capitalize “general” with “Welfare”; no, I don’t have another treatise to cite, but as a lawyer, I find it curious.]

But you do not have to take my word for it.

From Corwin and Peltason’s Understanding the Constitution, Twelfth edition, which was a seminal text for all undergraduate Constitutional Law courses:
“A word of caution: the general welfare clause is tied to the power to tax and to spend; no general power is granted to Congress to legislate for the general welfare.  But as noted in the discussion of federalism, liberal construction of congressional powers and the demands of our times have removed any serious constitutional limits stemming from this clause.
James Madison argued that Congress could tax and spend only to carry out one of its other granted powers-that is, Congress could tax and spend to establish post offices and post roads (Section 8, paragraph 7), to regulate commerce with foreign nations (Section 8, paragraph 3), and so on.”

Even if you choose to continue the modern Congressional trend of misreading this clause to find a right to legislate for the general welfare, this still wouldn’t qualify.   If you say that it is necessary for the general welfare for everyone to have “affordable” health care, the legislation contemplated doesn’t provide that, as it merely makes the government a competitor with the private sector to provide health insurance.
If you say that it is in the general welfare to provide “affordable” health insurance for everyone, it still fails to accomplish that, as even the Fresh Prez of Bill Ayers has admitted that it will still leave millions uninsured.  Further, mandating that we are all made (directly or indirectly) to pay for a “benefit” affecting something so personal is truly offensive to the very idea that we are a nation of free people who do not exist to serve our government, as application to something applying directly to the well being of individuals strikes deep into the firewall of privacy in all things personal and private to an individual, starting with the Fourth Amendment, and its penumbra that has found the right of privacy in so many other areas of our lives as well.  (Google Griswold v. Connecticut)

 “You’ll have health insurance, and even if you don’t, you’ll still pay us!” is a statement that should only illicit one response from free men who wish to remain that way: gunfire.

I don’t blame you for being wrong about this.  The modern American has heard so many times before that the Government is the solution to every problem that many of them fail to understand that if it isn’t about Government trying to rectify the result of a previous “solution”, then its solution should be no more than required.  I believe you already acknowledged that there were other things to be tried…tort reform, which would properly belong to the states, and in places where it has already been tried, like Texas, it has already made a positive impact, letting customers chose from companies out of state, etc.   You’re on the right track, you just need to finish educating yourself about which duties properly belong where.

In closing, before you expound further on the “Hamiltonian view of interpretation”,  I leave you with the following, from the Federalist # 33, written by Hamilton, who was addressing criticism of the “Necessary and Proper clause” and the “Supremacy clause”:

“But it may be again asked, Who is to judge of the NECESSITY and PROPRIETY of the laws to be passed for executing the powers of the Union? I answer, first, that this question arises as well and as fully upon the simple grant of those powers as upon the declaratory clause; and I answer, in the second place, that the national government, like every other, must judge, in the first instance, of the proper exercise of its powers, and its constituents in the last. If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify. The propriety of a law, in a constitutional light, must always be determined by the nature of the powers upon which it is founded. “

The rationale that “The Government has been usurping power for years, why stop them now?”  simply won’t cut it.  When we know that Government has been doing something wrong for decades, we have a duty to correct that error, not to allow it to compound with our acquiescence.  If this wasn’t true, then slavery would still be the law of the land.  On the matter of H.R. 3200, the Congress simply does not possess the authority to do what it proposes.  It didn’t have the authority with Social Security, or with Medicare, either.  But that is no excuse to let them brew up another pot of failure, and pour a cup for the entire nation without being asked, no, demanded to tell us where they get the authority.  And when the answer is not satisfactory, then they should be told “NO.” until they finally understand that “NO” means “NO”.


As for the Constitution being a charter of negative liberties, I’m not quite sure where he’s coming from on that one. I’d need a bigger authority on the constitution to weigh in here but I only see the Constitution as being a charter of negative liberties by omission … hence the need for amendments that expanded liberties.

Let me help you out with this one. What the self-proclaimed ‘constitutional scholar’ is lamenting is that the Constitution was intended to preserve the people’s rights from the infringment of Government, and as such, places limitations on what Government can do, and, in the care of responsible leaders, these limitations are also a limit on Government’s ambitions and designs with regard to the rights of the people. Believing as he does in the dubious notions of “social justice” and the enormous power of a government strong enough to give life to such concepts, these limitations are completely unacceptable to him. Viewing the Constitution and its history through a glass darkly in this fashion, the only conclusion that he can arrive at is that the Constitution is “deeply flawed” and only he, in his benevolent wisdom can “fix” those flaws. Such a belief isn’t just wrong, it is hubris on a galactic level, and if he acts upon it, it will be as divisive as any issue this nation has ever faced.

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