Bryan Fischer
The Constitution and MussoliniCare
By Bryan Fischer
January 18, 2010

I'm fine with efforts by well-meaning leaders, such as Orrin Hatch, Ken Blackwell, and Ken Kuklowski in The Wall Street Journal, to wade into the thicket of Supreme Court jurisprudence and show how, even with 75 years of rampant judicial activism, the government mandate on health care insurance is unconstitutional.

I've read any number of these treatises, which soon become mind-numbing exercises in legalise and technical points of prior court rulings. All this does is further illustrate the travesty judicial activists have created by usurping legislative power and making law from the bench.

I prefer a much simpler approach: let's look at the Constitution itself — rather than the hash the Supreme Court has made of it over time — and let it be our guide. Taking the Constitution as given to us by the Founders, a government mandate which requires every American to buy a product from private companies is absurdly and preposterously unconstitutional.

The simple truth is that the federal government, by the design of the Founders, has only the powers explicitly and specifically granted to it in the Constitution. If the central government tries to exercise a power that is not among those "enumerated powers," it has no right to act at all.

As James Madison said, "[T]he government of the United States is a definite government, confined to specified objects. It is not like the state governments whose powers are more general (emphasis mine)."

You will look in vain for any constitutional warrant for the government to take over the entire health care industry. It's just not there. The effort of the Democrats to control all of America's health care is not just immoral, unethical and terrible public policy, it is flatly unconstitutional and should be ignored by the people and rejected by the states.

Those senators who have given thought to whether they have the constitutional authority to impose a mandate on every American to purchase health insurance or go to jail — and it's clear from interviews with them that most have not — will either cite the "general welfare" clause or the "commerce" clause of the Constitution.

It's worthy of note that most of the senators who have been asked by Cybercast News Service where in the Constitution they find the authority for such a mandate first stare blankly at the interviewer, making it clear that they've never even thought about it and have absolutely no idea what the answer to the question is.

Then they will mumble something to the effect that nobody questions our authority to do this, or that we've got lawyers around here who can answer that question, or that we haven't a clue but assume we can do whatever we want. When Speaker Nancy Pelosi was asked the question about constitutionality, she stared daggers at the questioner and said (twice), "Are you serious?" Well, yes, ma'am, we are.

"General welfare" clause doesn't get it done

The Constitution does say, in Article I, Section 8 that the purpose of granting certain specified powers to Congress is to "provide for...the general Welfare." On the face of it, of course, "general" welfare means that everybody in the U.S. benefits, not just some segments of society or special interest groups favored by the party in power.

When the federal government provides, for instance, for a standing military to protect our domestic tranquility, every man, woman and child benefits from a sense of security and freedom from fear. You don't have to belong to a particular race, be above or below a particular income level, or belong to a special interest group to enjoy that. Everybody benefits — that's what "general Welfare" means.

We have the words of the Founders to tack this down and remove any shred of doubt. James Madison, the Father of the Constitution, was quite specific and direct about the meaning of this clause.

Said Madison, "With respect to the two 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 the creators (emphasis mine)."

In a different place, he said, "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... (emphasis mine)."

Thomas Jefferson also added the considerable weight of his opinion on the matter. "Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated (emphasis mine)." Can't get much clearer than that.

You will look in vain for the "government takeover of the entire health care industry" clause in the Constitution. It ain't there. Since it's not one of the enumerated powers, Congress has no constitutional authority to compel us to do anything related to health care. Nada, zip, zilch.

Simply put, if we understand the Constitution in the only sense it legitimately can have, the meaning given to it by the Founders, the Democrats are dead in the water. They have no authority to do what they are trying to do, and the states shouldn't let them get away with it.

"Commerce" clause doesn't get it done

The last refuge of these scoundrels then is the "commerce" clause. If they can't justify this gross overreach of governmental powers under the commerce clause, they're toast.

The Constitution does give the central government the authority, again in Article I, Section 8, to "regulate Commerce...among the several States."

But unfortunately for our activist friends, James Madison — the Father of the Constitution, remember — discussed this authority directly in Federalist Paper Number 42.

According to Madison, the authority to regulate interstate commerce was given to Congress for one reason and one reason alone: to keep states from charging import and export duties on goods shipped across their borders. That's it.

It's worth noting in passing that by "commerce," the Founders clearly meant only "trade" or "exchange," not economic activity in general, and they distinguished it from "agriculture" and "manufacturing" in particular, which means the central government has no authority whatsoever to regulate either of these latter two economic activities. Any regulation of manufacturing and agriculture was reserved exclusively for the states. There goes OSHA, the EPA, the Department of Agriculture, etc., etc. Oh well.

Disastrously, activist courts since the 1930s have interpreted the "commerce" clause so broadly that there is no economy activity whatsoever that lies outside its purview.

But Madison makes clear the original intent and meaning of this clause. Said he, "A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former."

This, Madison added, would only "nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquility." So, this Founder says, the "commerce" clause was included to prevent one thing and one thing only: states charging import and export taxes on goods transported through their jurisdiction. The purpose was to contribute to peace and harmony among the various states.

That's it, that's all she wrote, there's nothing else there.

Bottom line: Congress has absolutely no constitutional authority to order all Americans to buy health insurance, to fine them and throw them in jail if they don't, or even to tamper in any way with the nation's health care industry.

Whatever regulation of health care is to be done is to be done by the individual states, and it's time state governments started reminding the federal government of this constitutional reality and to tell them firmly to butt out.

Under the 10th Amendment, the states have the constitutional authority to do just that, and it's about time they started. The future of the Republic and the peservation of what's left of our liberty depends upon it.

© Bryan Fischer


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
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