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November 13, 2009

Is It Constitutional?

A lot of claims have been made, recently, that Obama/PelosiCare is unconstitutional. It's also been a long time since I studied Constitutional Law, so I don't have a firm opinion on the matter - yet. Conservatives should be cautious here. Being wrong is cumulative, especially on the facts.

What I do know, now, is that "constitutionality" depends upon The Court's interpretation of the meaning of the constitutional principle being questioned. While there will certainly be a host of constitutional issues involved in the advancement of nationalized medicine, the first will necessarily be the state's "Police Power", which could underwrite the legality of nationalized medicine.

As I recall, the Federal government's Police Power derives from Article I, Sec. 8 of the Constitution, which states, among other things...

"The Congress shall have the power to lay and collect Taxes,[etc.]...and provide for the common Defense and General Welfare of the United States..."

Promoting the General Welfare has been employed as the underlying constitutional power to practice compulsory sterilization, compulsory vaccination; to enforce Civil Rights legislation under the Commerce Clause, and so much more it makes you dizzy. What IS the General Welfare? That is the first constitutional principle involved in determining the legality of nationalized medicine.

So, no offense meant to anyone, but when I hear conservative talk radio hosts bellowing that nationalized medicine is unconstitutional, I don't hear a word about the constitutional principle that supports that claim. You can be sure that the activist lawyers in pay to our drones in Congress have already prepared a constitutional defense of their new diktat. Right now, an activist Supreme Court would probably find it "constitutional".

PS: Said talk show hosts have demanded that they be shown the words in The Constitution which permit PelosiCare. It's not the text that matters, it's 200 years of judge's opinions and decisions that matter.

28 comments:

Unknown said...

"Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated."

~Thomas Jefferson

Unknown said...

"With respect to the words general welfare, I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators."

~James Madison

Rhod said...

Son3, I agree with you and Jefferson, but our opinion isn't "constitutional" unless a final Court says it is.

Rhod said...

Son3, in re your second quote from Madison....he probably wouldn't have endorsed the use of the Commerce Clause to accomplish Civil Rights legislation, or Griswold v. CT to establish a Right to Privacy which made Roe possible.

Belief isn't enough, and that's my point.

Anonymous said...

I'd have to do some thinking on it, Rhod. The problem with the legislation is that it mandates all to pay for health insurance. But looking at it another way, it's really just a tax, which the govt. can pretty much levy now in any form. In the end, I think the whole exercise is a waste of time and money. The debate is going to be moot, too, because the Senate is not going to pass it ... especially when it oozes into next year.

The real issue/problem with constitutional judicial review is that abominable precedents like Griswold and the "police power" cases were made up and not based upon the text or history of the Constitution itself. So, now this illogic becomes the guiding light for the future. Still ... it is what (slap's self). I almost said it.

I can hear the voice of Scalia rattling in my brain ... conservatives have to decide whether they want to be conservatives or not. That is, the way to change laws is through the legislature, not the courts. Go win the next election.

And on the subject of being conservative, we have to get back to where society is really changed from the get-go. And it's not in any legislative body or courtroom. It starts with individuals and those they rub shoulders with.

Unknown said...

If we are dealing with "an activist Supreme Court," it doesn't matter what the Constitution says. An activist Supreme Court will write everything and anything that it wants to in order to make the law consitutional. The real question is, "Will the citizens roll over and take it?"

Just a conservative girl said...

See I think where they are going to run into problems is the all the requirements that they are forcing upon the states. More than likely the courts would rule that government run health care doesn't violate the constitution, but all the forced mandates on the states seems to be against the 10th ammendment.

Let's just hope that it doesn't pass and we won't need to worry about the court battle.

Rhod said...

DC, fine and understandable points.

I didn't think of it as primarily a tax, but that explains the IRS statutes and penalties which come into play for non-compliance.

Scalia's majoritarianism is the best we can hope for. It does require an active and contentious electorate, which is what the left's siren song about the virtue of bipartisanship is supposed to undermine.

The political class (you and I argued about that expression a long time ago) fears and loathes an involved population. They will do whatever is necessary to suppress interest in what they do, including interference in free speech.

In this country that will eventually get them a more unfortunate response.

The Rattler - III said...

The preamble to the constitution states that "in Order to" promote the general welfare, the constitution is given to the people. Through the freedoms that are empowered to the people and the strict limits put on the government, we the people can take care of ourselves. Yet just the opposite it upon us. The supreme court, while it renders opinions, is still no greater in power than the other 2 branches. They are not the final word. Congress chooses to fund it and the President chooses whether to enforce it. When all 3 lean far left, get ready to capsize. And we've been listing that way for over 100 years.

Fuzzy Slippers said...

Thanks for this post, I've been wondering about this, too, having heard people saying it on Fox. But does this mean that if Congress decides it's in our best interest and "general welfare" to be vegetarians . . . or for that group of citizens to be farmers and that to work in factories . . . how far does this General Welfare thing go?

Also, I've seen a couple of people on Fox also talk about repealing it if it does pass. Is that possible? Likely?

MTL said...

I find it pretty hippocritical that when Obama was asked about his opinion on abortion, he claimed it was above his paygrade. Yet now this new proposed health plan that everyone MUST buy to avoid penalties is going to include either a pro or an anti stance on that matter.
How did it go from "above my paygrade" because the feds should stay out of that to "you will buy this and no matter what your opinion on that subject, you HAVE to have it".

MRMacrum said...

Good post Rhod.

Hoping the Blind Will See said...

What we also have to understand is that the "government" is We The People. It is not 535 people in Washington dictating their interpretation on us. And if We The People think they've taken "general welfare" too far, We The People have a responsibility to vote those 535 out of office. However, here's the rub...

Because people look at the country in very small slivers (by how it affects them), many of the 535 in Washington have effectively "bought" themselves a life-long seat.

Everyone will agree that the 535 in Washington need to go, but an awful lot of them will also say :my guy's OK, though". So nothing much ever changes.

The difference today is that there are an awful lot of people out here who are fed up with the status quo and will react (I believe) if there isn't a wholesale change in Congress come next November.

Anonymous said...

Rattler is right. One of my old (controversial, but great) law professors argued that the people are only bound by con'l law opinions to the extent they agree to be bound. It's sort of like the IRS's reliance on voluntary compliance. At some point, if they push too far they could have a real issue.

Still, the problem here is the Demo leglislative and executive branches, not the Court.

Hoping, I love you, man. But you've got to sharpen that club. Vote all 535 out? How about Sessions from Alabama? Coburn? How about Hoekstra? Poe, etc? What about DeMint? He's in Washington. Plus, he's a Republican. Off with his head!!!

Most of the Senate is not up for election, any way. The framers themselves recognized that changing the govt. wholesale at one time is a bad idea. It reeks of hastily throwing one's hands in the air and just guessing/hoping that such an action will cause a solution.

We've got to be cool, reflect and look to achieving sustainable gains for the long-term. I am for playing to win, not merely tilting at windmills and saying vapid phrases that get nods at the local Jack-in-the-Box.

Rhod said...

Fuzzy:

Yes. There are legally no limits.

The General Welfare clause would be the "defense" or justification for an act, or law, that is challenged on other grounds.

The Court does not come into play when some party demands that legislation be proven constitutional.

As far as repeal goes, I'd guess that it would be possible with the right people.

Opus #6 said...

Rhod, I think I understand your point. The constitution only protects us to the extent that those in power agree it should protect us. And yes, Americans could "rise up", and "vote the bums out" but that is another form of "taking power".

Rhod said...

Opie, you said it in fewer words.

Implied powers and the penumbra around enumerated powers can render the Constitution almost meaningless in the hands of the wrong people.

Fuzzy Slippers said...

Thanks Rhod.

As to what you and Opus are saying . . . gee, I wonder if BO, who taught constitutional law at UChicago, knows this? (in other words: we're in deep deep trouble)

Rhod said...

Con Law instructor, which is kinda like a trainee, Fuzzy.

They're bad enough. Full professors are worse. My experience with the type showed that they thought themselves above the rubes who wrote our Constitution.

LL said...

The "Progressives" believe that they can "interpret" the Constitution to suit their whims irrespective of case law. There are a number of those folks on the Supreme Court, but thankfully there are also strict Constitutionalists.

The test of Constitutionality can only come after it's law and is referred to the Supreme Court for a decision. I'm with Rhod - I think they'd say it's Constitutional under the concept of "General Welfare".

The framers didn't mean "nanny state" but the ObamaNation doesn't care what they meant - they were white (racists) men (sexists).

Hoping the Blind Will See said...

DC, I know there are a few of the "535" that are probably keepers, and I was not advocating that they all go in 2010, but we need to start voting out most everyone where a more conservative candidate is running. And we need to get term limits introduced and passed so that we don't have the "lifetime channel" playing in Congress forever.

And another thing, just because someone is a "republican" does not necessarily mean they are conservative. Everyone needs to be researched and viewed for their past voting records under microscopic-like scrutiny.

TS/WS said...

Only a Super Majority of like Minds (probably a Republican),Veto Proof Congress. Not LIKELY in Our Life Time!

Anonymous said...

Hoping, I completely agree that we vote for the most conservative candidate ... who can win. Please don't write me in. I'm the best candidate, but I won't win.

You mean just because some one is a Republican doesn't mean they are a conservative? Really? C'mon, Hoping. I know that.

Point is this ... in each election there are going to be two candidates who can win (realistically) Should Demos vote for the Green Party (it's arguably more Left). We think they should. That tells you something.

If you vote for the more conservative candidate of those who can really win, you are voting for the Republican candidate almost all the time. I know this pains you, but it is true. This is fact. Plus, the Republican candidate is usually better than the other pretenders who either have quirky views that are not conservative -- i.e., Libertarians, Constitution Party and such. This is wacko-land.

And again ... 80% of Demos (even with all those blessed Blue Dogs) voted for Pelosi-Care. One of 180-something Republicans voted for it. Why? Not because "R" is magic. It's because the Republican Party, although not uniformly conservative (esp. in different regions) is much, much more conservative than the Demos on the whole.

Mr. Demo who campaigned against the public option -- Bill Owens in NY-23 -- voted FOR the public option. There is huge pressure from the left in the Demo Party. The opposite is true with the Republicans. It comes from the rank-and-file (people who give the money).

Opus #6 said...

DC, I took phrases out of your last 2 paragraphs and put them out on Twitter. Very well said.

Anonymous said...

Thanks, Opie. In crazy times, there's always pressure to do crazy or rash things. We are on a good course now to start ... start .... correcting a lot of this in 2010. If we push back against the people responsible, we can make some hay. That's what I am hoping for.

Hoping the Blind Will See said...

DC, I don't have the full answer, but I know this. The two party system is currently broken. The democrats are full of far left progressives, and the republicans are run by moderate progressives. So when there is a choice of Obama (far left progressive) and McCain (moderate progressive) in what way do we win? We don't! So I say to you, and everyone else out there, that voting for the "candidate who can win" and who is least likely to hurt us the most, is a flawed philosophy. It may have been fine even a year ago. But too many people now understand that there is no real choice between these two parties.

In my opinion, we need to start recruiting candidates with conservative principles. We need to stand on principle and start voting against ANYONE who holds progressive socialist values - period. If we don't, we'll just die a slower death...

Anonymous said...

Hoping, per Gallup conservatives make up 40% of the electorate. How do you propose to win a majority with this? Conservatives must build coalitions; and liberals have to build bigger ones (and/or lie about what they believe).

Conservatives should know that government always causes problems. That's what it does. Take the "lesser of two evils". I think of the words of Lino Graglia at times like these ... a liberal wakes up in the a.m. and asks what good he can do. A conservative wakes up and says, "Thank God, my throat wasn't cut last night."

You expect pristine conservative candidates in Washington, D.C.? And you call yourself a conservative?

Don't look to the govt. to fix the various messes we are in. Do it yourself. I am not waiting around pouting because a bunch of morons thought it wouldn't be such a bad idea if Obama won (because it would teach us a lesson and also that there would be no difference.) We are watching this uncensored freak show in Washington, and you keep saying there is no difference. This is a joke, Hoping.

Stop parroting Beck and deal with the facts -- almost all the Demos are for Pelosi-Care; almost all the Republicans are standing against it. No, the differences aren't wide enough, but they are there. We take the best alternative to victory.

What you advocate would give us more Obamas in the future.

Hoping the Blind Will See said...

Consider this.

First look at the voting records of the Republicans - you will find that many, many of them vote progressively on some of the issues. Some more than others. So, in a closed club (like Congress), do you honestly believe the deals being made are not all worked out ahead of time? And if they are, what's to say that there is no collusion going on between Dems and Reps to demonstrate a "perceived" difference in philosophy. For instance, if it made no difference in the outcome in the vote for the Health Care Bill, Reps could all vote against it and "look good" to the conservatives.

But past voting records do not lie! Go to Thatsmycongress.com and see how they've voted in the past. Too many are too liberal for me. And I hope there are an awful lot of people out there that think like I do.

Building coalitions, while nice buzz-words, will not help this country if those coalitions remain as far left as they have in the past. I rather stand up and say enough is enough.

Let's see what 2010 brings and go from there...