Tuesday, February 9, 2010

Healthcare & the General Welfare Clause - A Troubling Pairing, by Freddy Boisseau

I just came across this blog post today: “Donald McEachin Eviscerates Anti-Individual-Mandate Legistation” As one that believes in the Constitution and the principles it espouses, I thought it needed a response. Let us look at the two sections that come into play here. First, we have Article 1 Section 8, which spells out the power given to Congress by the states.
Section 8. 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; but all Duties, Imposts and Excises shall be uniform throughout the United States;
To borrow Money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
To establish Post Offices and post Roads;
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
To constitute Tribunals inferior to the Supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And
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.
There are two points to be made here. First nowhere in that section do you see anything that relates to healthcare or an individual’s health. Now, when you bring that up to people like the poster of this blog, they then point to this part, “ general Welfare of the United States”. The problem here is twofold, first the meaning of “general welfare”, has changed over time. Alexander Hamilton, the Founding Father with the loosest view of the General Welfare clause wrote the following in the Federalist Papers.

"This specification of particulars [the 18 enumerated powers of Article I, Section 8] evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd as well as useless if a general authority was intended." - Alexander Hamilton, Federalist 83

"No legislative act … contrary to the Constitution can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid." - Alexander Hamilton, Federalist 78

From both of these quotes, I fail to see how even he could justify the Federal Government getting involved in Healthcare. The second problem with using the “general welfare” clause can be shown with the following example. Suppose a gated community hired me and signed the following agreement with me:

Frederic L. Boisseau shall have Power To lay and collect fees, to provide for the safety and well being of the community; but all fees should be uniform for each homeowner;
To patrol the streets and apprehend those that commit crimesTo secure the entries to the community
To provide emergency services to fight fire and give medical aid.

If I then started saying that you could not have a pool (kids could drown in it), a real Christmas tree (fire hazard), swing sets (a child could get hurt), or blinds on your windows (might prevent me from seeing a crime being committed). You would say that I was crazy, you did not give me that authority, and you would not accept any argument that I had that authority from the “safety and well being” clause. And you are right, my authority is clearly limited to the 3 items listed above.
When you take the above in context with the 10th amendment “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people” is very clear. Restated, it says to Congress -- If the power is not listed in Article 1 Section 8, CONGRESS YOU CANNOT DO IT. End of discussion.
For those of you who would like more information or insight on what this writer calls the “10 Troubling Clauses of the US Constitution”, see this link http://www.reasontofreedom.com/general_welfare_clause.html.