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Letters to the Editor

Constitutional?

September 13, 2009

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To the editor:

In the discussion over whether a public health care option is good policy, the question of constitutionality is being overlooked. The legal grounds for such spending will be based upon an expansive reading of the General Welfare clause, but is that the correct reading? James Madison interpreted the clause narrowly, construing it as limiting Congress’ power to spend.

This view of the clause prevailed until Franklin Roosevelt threatened to pack the Supreme Court with six new justices. At that time the court made an abrupt about-face and held that the clause actually expanded the spending power of Congress beyond the enumerated powers.

It is only by this expansive interpretation that Congress can propose a public option as it is not an enumerated power. If we are to maintain the idea that the Constitution creates a government with limited powers, then the construction of a clause which, for all practical purposes, grants unlimited power to Congress to spend cannot stand. Before we examine the wisdom of this health care policy we should first revisit the implications of abandoning principles of limited government in favor of an expansive reading of the General Welfare clause.

Comments

monkeyhawk 5 years, 5 months ago

HEALTH CARE BILL - Its Problems The Truth About the Health Care Bills - Michael Connelly, Ret. Constitutional Attorney 08.24.09

House Bill 3200: The Affordable Health Care Choices Act of 2009

Despite what media is saying. The law does provide for rationing of health care, particularly where senior citizens and other classes of citizens are involved, free health care for illegal immigrants, free abortion services, and probably forced participation in abortions by members of the medical profession.

The Bill will also eventually force private insurance companies out of business and put everyone into a government run system. All decisions about personal health care will ultimately be made by federal bureaucrats and most of them will not be health care professionals. Hospital admissions, payments to physicians, and allocations of necessary medical devices will be strictly controlled.

This legislation really has no intention of providing affordable health care choices. Instead it is a convenient cover for the most massive transfer of power to the Executive Branch of government that has ever occurred, or even been contemplated. If this law or a similar one is adopted, major portions of the Constitution of the United States will effectively have been destroyed.

The first thing to go will be the masterfully crafted balance of power between the Executive, Legislative, and Judicial branches of the U.S. Government. The Congress will be transferring to the Obama Administration authority in a number of different areas over the lives of the American people and the businesses they own. The irony is that the Congress doesn’t have any authority to legislate in most of those areas to begin with. I defy anyone to read the text of the U.S. Constitution and find any authority granted to the members of Congress to regulate health care.

(cont.)

monkeyhawk 5 years, 5 months ago

"This legislation also provides for access by the appointees of the Obama administration of all of your personal healthcare information, your personal financial information, and the information of your employer, physician, and hospital. All of this is a direct violation of the specific provisions of the 4th Amendment to the Constitution protecting against unreasonable searches and seizures. You can also forget about the right to privacy. That will have been legislated into oblivion regardless of what the 3rd and 4th Amendments may provide.

If you decide not to have healthcare insurance or if you have private insurance that is not deemed “acceptable” to the “Health Choices Administrator” appointed by Obama there will be a tax imposed on you. It is called a “tax” instead of a fine because of the intent to avoid application of the due process clause of the 5th Amendment. However, that doesn’t work because since there is nothing in the law that allows you to contest or appeal the imposition of the tax, it is definitely depriving someone of property without the “due process of law.

So, there are three of those pesky amendments that the far left hate so much out the original ten in the Bill of Rights that are effectively nullified by this law. It doesn’t stop there though. The 9th Amendment that provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people;” The 10th Amendment states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are preserved to the States respectively, or to the people.” Under the provisions of this piece of Congressional handiwork neither the people nor the states are going to have any rights or powers at all in many areas that once were theirs to control.

I could write many more pages about this legislation, but I think you get the idea. This is not about health care; it is about seizing power and limiting rights. Article 6 of the Constitution requires the members of both houses of Congress to “be bound by oath or affirmation” to support the Constitution. If I was a member of Congress I would not be able to vote for this legislation or anything like it without feeling I was violating that sacred oath or affirmation. If I voted for it anyway I would hope the American people would hold me accountable.

For those who might doubt the nature of this threat I suggest they consult the source. Here is a link to the Constitution: http://www.archives.gov/ex hibits/charters/constituti on_transcript.html

And another to the Bill of Rights: http://www.archives.gov/ex hibits/charters/bill_of_ri ghts_transcript.html

There you can see exactly what we are about to have taken from us."

Michael Connelly

Constitutional Law Instructor

Carrollton , Texas

jonas_opines 5 years, 5 months ago

You're just Now worried about an expansive federal government, Mr. Johnson?

kansastruthteller 5 years, 5 months ago

I too am worried about an expansive federal government. Much of the expansion happened before I was born or too young to know. But that doesn't mean I shouldn't take a stand now.

Mr. Johnson is right - public health care is not Constitutional and we should judge government acts not on the basis of whether they make us feel good, provide benefits and entitlements, but on whether or not they are Constitutional.

Maybe it is too late to get the genie back in the botttle, but we as Americans have to try.

Jimo 5 years, 5 months ago

While much better written and thought out than the average LJW letter(!!), this one skips over crucial details to present a false image of the past.

"James Madison interpreted the clause narrowly" Yes, sort of. And, so what?

Conflict over a "narrow" and an "expansive" view of federal powers, including Congress', started on Day One of this nation with Washington's first Administration. "Expansive" won for the most part.

"This view of the clause prevailed until Franklin Roosevelt" Yes, sort of. And, so what?

"Expansive" continued to expand generally throughout American history from the Louisiana Purchase of Jefferson (Madison's partisan), Lincoln's sweepingly radical actions, right on through Wilson's waxing of governmental powers during WWI. And so what? The key constitutional theme from basically the post-Civil War Reconstruction until the Depression era was the prostitution of the Constitution to the rise of massive industrial interests, the inability to adapt primitive law to the needs of a continental and even global economy, and an activist refusal to enforce the 13-15 amendments except in the most narrow interpretation possible.

Here, you see the clear goal of the radical right - to wash away generations of law by appointing activist judges who seance with the spirit of whatever Founder will work for their activist ends to apply ancient propositions to modern, unfathomed issues. One need not have an IQ greater than an imbecile to grasp that such an undertaking is impossible and will inevitably result in the ideological application of desired ends rather than an honest crafting of law. (Leaving aside that the Founders never intended for law to be unchanging nor the creepy Neanderthal-like worship of ancestors and the concomitant belittling of our own judgment and ideals let alone the sick racist implications of such a project.)

Would that Mr. Johnson had been around with his concerns when George Bush added dozens of trillions of debt to the Medicare system by adding in an unfunded, non-means tested prescription program!! LJW should have covered those tea parties! Oh, that's right, Mr. Johnson had no such principle then. How surprising that he has suddenly discovered his principles now.

Scott Drummond 5 years, 5 months ago

Article I, Section 8, Clause 3:

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

Scott Drummond 5 years, 5 months ago

I think it probably forms a pretty good basis upon which Congress can regulate the health care industry.

Jimo 5 years, 5 months ago

"The Founders didn't intend that the law would be unchanging, that's why they left us a method for change—amendments."

Sorry, you need to re-read early American history. Try a book from the adult section of the library this time, something without cartoons. The Founders lived that history. They fought viciously over this very issue of whether the constitution is written in stone. They undertook many actions denounced as extra-constitutional that those just like you refused to believe had any justification within the constitution.

The proposition that the only constitutional changes were the two procedural amendments (XI and XII) until the dead lay in heaps and blood ran like rivers more than half a century later (XIII) is both fatuous and absurd - and an obvious attempt to take advantage of the abysmal quality of modern education in U.S. history.

jumpin_catfish 5 years, 5 months ago

Mr. jones_opines, we conservatives have been considered about expansive government for a long time because as government expands we inch closer and closer to a totalitarian regime.

Jimo 5 years, 5 months ago

Thanks Liberty. Spoken with the sincerity of a Joe Wilson apology. I guess that's all that can be said when you quickly recognize the limits of parroting others words on a topic of which you know nothing.

jonas_opines 5 years, 5 months ago

"we conservatives have been considered about expansive government for a long time"

If you say so. Funny how it keeps expanding under the Republicans too, though. Sometimes even more than some of the Democrats.

usesomesense 5 years, 5 months ago

I don't understand why they don't just expand the patient's bill of rights instead of making this so difficult.

If insurance companies were to be required to treat an entire state (or optionally the whole country) as a group, they'd change their ways in a hurry. Each group (state) would have different options for coverages, but every person in that state would be subject to the same terms (probably age bracketed as well - though this should be limited to a cost spread of 100% - i.e. - the oldest group can't cost more than double the youngest group) and receive the same rates and a minimum coverage law would be required (like minimum liability insurance is required for your car - a health insurance policy of any kind would have to have certain coverages - like wellness checks and maximum out of pocket etc.).

It's really pretty simple. Many mutual companies used to work in this way. They didn't analyze each individual or group so much - they kind of treated all of 'small business' as a group and were only concerned with the bottom line as a whole - not each policy.

Insurance companies are in business to make money. This method would level the playing field for insurance companies and individuals. Competition for large companies becomes competition for entire states or the country. Instead of individuals paying padded premiums while those employed by national companies premiums are break even - or perhaps even a loss - it evens out.
An individual working for Ford has a monthly premium of $300 - an individual that is self employed and in the same age bracket gets the same coverage for $300.
No discounts, no kickbacks, no special packages. If a national company like Ford decides it's better to use 20 different companies instead of a national policy then they can. Individuals could choose between a national company and a regional company - or policy. It is what it is and anyone can get it for the same price. Some states call it 'Consumer Price Protection'.

Competition becomes about customer service, additional coverages, deductible levels etc. and rates.

As additional incentive to employers a tax credit should be used - the more they cover the better. Additionally there should be more credits for small businesses based on their gross profit. If an employer doesn't offer health insurance they should be required by law to offer premium withholding. Also, MSA's (medical savings accounts) should be available to ALL citizens by their BANK - not their insurance company. A debit card (like the VISION card for food stamps) would only work at doctor's offices, hospitals and pharmacies.

yourworstnightmare 5 years, 5 months ago

The Constitution says so little about health care that it is difficult to say that government-managed health care is unconstitutional.

The preamble does say "promote the general welfare", and this has been interpreted many ways, including to mean that the government has vested interest in the health and welfare of its citizens, and therefore regulatory ability in the realm of health care.

What is the exact argument, the "Exact" argument mind you now, that government-run health care is unconstitutional? What clause or amendment would it violate and how?

yourworstnightmare 5 years, 5 months ago

"If we are to maintain the idea that the Constitution creates a government with limited powers, then the construction of a clause which, for all practical purposes, grants unlimited power to Congress to spend cannot stand."

This is not a valid argument. Where in the Constitution or in Section 9 does it state that it is unconstitutional for the government to spend money or that spending must be limited?

In fact, it is up to the balance of powers described in the sections 1-10 that determine the content and scope of budgets.

You might personally feel that government spending is incorrect, but nowhere in the Constitution does it say that government spending must be limited.

It is through the balanced actions of the executive and legislative branches that determines government spending levels. In other words, through our deliberative democratic processes.

If I am wrong, please show me in the Constitution where I am wrong, not simply how you feel about it.

yourworstnightmare 5 years, 5 months ago

From section 9 of the Constitution:

"No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time."

To me, this says that a budget must be passed by law like any other bill (e.g. agreed to by both houses of Congress and signed by the president); and that a record of expenditures (e.g. a budget document) must be published and made public.

Nothing about limits of governmental spending here. Correct me if I a wrong.

just_another_bozo_on_this_bus 5 years, 5 months ago

"Exactly"

Exactly? Then why did you rephrase to say something different?

"To make all Laws which shall be necessary and proper FOR CARRYING INTO EXECUTION the foregoing Powers"

What's necessary to carry these powers into execution? Obviously, the framers chose not to enumerate any further than that, just they did as with so many other articles and amendments. Which means that a strict constructionist interpretation is all but impossible.

Jimo 5 years, 5 months ago

Lib _ stop broadcasing you ignorance.

Richard Heckler 5 years, 5 months ago

The insurance industry is full of crooks and liars aka white collar criminals! Only people who believe in profits from injury,cancer and other illness are insensitive profiteers. Medicare Insurance for All does not have millionaire CEO's,advertising budgets, shareholders, a $100,000,000 anti reform budget and does not contribute tons of corrupt dough to political campaigns.

====================================================

Health insurers have been forced consumers to pay billions of dollars in medical bills that the insurers themselves should have paid, according to a report released yesterday by the staff of the Senate Commerce Committee.

The report was part of a multi-pronged assault on the credibility of private insurers by Commerce Committee Chairman John D. Rockefeller IV (D-W.Va.). It came at a time when Rockefeller, President Obama and others are seeking to offer a public alternative to private health plans as part of broad health-care reform legislation. Health insurers are doing everything they can to block the public option.

At a committee hearing yesterday, three health-care specialists testified that insurers go to great lengths to avoid responsibility for sick people, use deliberately incomprehensible documents to mislead consumers about their benefits, and sell "junk" policies that do not cover needed care. Rockefeller said he was exploring "why consumers get such a raw deal from their insurance companies."

The star witness at the hearing was a former public relations executive for major health insurers whose testimony boiled down to this: Don't trust the insurers.

"The industry and its backers are using fear tactics, as they did in 1994, to tar a transparent and accountable -- publicly accountable -- health-care option," said Wendell Potter, who until early last year was vice president for corporate communications at the big insurer Cigna.

Potter said he worries "that the industry's charm offensive, which is the most visible part of duplicitous and well-financed PR and lobbying campaigns, may well shape reform in a way that benefits Wall Street far more than average Americans."

Insurers make paperwork confusing because "they realize that people will just simply give up and not pursue it" if they think they have been shortchanged, Potter said.

http://www.washingtonpost.com/wp-dyn/content/article/2009/06/24/AR2009062401636.html

Satirical 5 years, 5 months ago

Raise your hand if you went to law school or have taken even a basic undergraduate Constitutional Law class...That's what I thought.

If you want to know what the Constitution means, read case law.

just_another_bozo_on_this_bus 5 years, 5 months ago

"If you want to know what the Constitution means, read case law."

Fortunately, our current president actually taught constitutional law, unlike our last one, who wanted to tear the constitution up.

Jimo 5 years, 5 months ago

Lib - you don't have an "argument". An argument requires a premise constructed upon facts. You're confusing argumentative with argument.

yourworstnightmare 5 years, 5 months ago

Liberty_one said: "That's kind of looking at it backwards though. The Constitution lays out the powers of Congress. If it's not listed then Congress doesn't have the power."

Let me repeat from section 9: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.”

This gives Congress the power to spend, as long as it is done in the context of lawmaking, which utilizes the balance of powers, and as long as they publish a budget document.

I really don't see where your argument is coming from, except from your own personal desires about how you think the Constitution should be. You are certainly not arguing using the actual content of the Constitution.

Liberty_one, we all know that you do not like government spending. However, there is simply nothing in the Constitution that limits government spending.

This was something that the Framers left to the democratic law-making process outlined in the the first 10 sections.

Satirical 5 years, 5 months ago

Looks like Jimo gets testy when someone offers a counter-argument.

And the statement, "An argument requires a premise constructed upon facts" isn't technically accurate.

BrianR 5 years, 5 months ago

If providing health care for people in the U.S. is found to be unconstitutional then perhaps the Constitution has outlived its usefulness.

"An argument requires a premise constructed upon facts”

I agree, that is untrue, 5 minutes in a Wal-Mart should clear that up for you.

Americans claim the the U.S.A. is the greatest country on the face of the Earth. That's a good one. If you can't find a way to provide health care for your citizens, you're not even in the top 10.

If people actually stuck with only the facts, the conversation would be very short and universal health care would be a right of every American.

This isn't a left/right issue but I realize that many of you can't see the world in any other configuration. This is a human issue. Cancer will not ask you what your political affiliation is before it kills you.

Satirical 5 years, 5 months ago

yourworstnightmare...

Please tell me you know the Federal government does not have the power to spend money on anything it wants as long as they call it "lawmaking" and provide notice to the public.

Please tell me you understand the Federal government cannot take an action unless it is Constitutionally allowed to do so.

Please tell me you understand our Federal government was created as a limited government with enumerated powers.

If you do not understand these three simple things please take a 6th grade civics class.

just_another_bozo_on_this_bus 5 years, 5 months ago

" In addition the General Welfare clause limits government spending to only things that provide for the general welfare—in other words Congress cannot spend money to help out specific groups or people. We have a limited government with limited powers."

Sometimes helping out specific groups simultaneously provides for the general welfare. Although I would agree that way too much of spending on specific groups does very little for the general welfare. But quite obviously, implementing a single-payer healthcare plan would do much for the general welfare, and very little for specific groups.

Satirical 5 years, 5 months ago

porch_person....

You must have learned, from listening to Obama for too long, how to put words in someone's mouth and distort what someone says into a straw man argument .

When did I say the scope of the the Federal government can address stopped in 1787?

When did I say the U.S. Constitution "forbids the American Government from addressing health care concerns?" In fact, I think based on previous Supreme Court precendent, the federal government likely has the Constitutional authority to do so if it desires. However, that doesn't mean an argument can't be made. Which Liberty_One apparently is making.

But nice impersonation of Obama...

yourworstnightmare 5 years, 5 months ago

Liberty_one said: "Congress can't just pass any law it wants to though. That clause you are citing limits the power of Congress to spend."

Of course. This is exactly what I said. Bills need to be passed by both houses and signed by the president. This does not place limits on the amount of spending.

Liberty_one said: "In addition the General Welfare clause limits government spending to only things that provide for the general welfare—in other words Congress cannot spend money to help out specific groups or people. We have a limited government with limited powers."

So what? This is not relevant. This does not apply to the amount that the government can spend. Stick with the argument here, Liberty_one.

Where in the Constitution does it limit the amount that the government can spend?

As to the general welfare bit, as Bozo said, there is clear precedence that helping a certain group of people can help all. This is well-established. Any means-tested government program (welfare, student loans, medicaid) falls under this category.

Jimo 5 years, 5 months ago

Lib - you made bizarre statements. I corrected them, not for your benefit (you're a dishonest person, that's obvious to everyone), but for the benefit of the casual reader who might be tempted to believe your alternate history.

Troll? What are you a five year old?

Jimo 5 years, 5 months ago

Satirical - you have the skills to link but not the skills to read. If you have an argument, make it. No one (under the age of 70) is impressed with "linkage skills."

KansasVoter 5 years, 5 months ago

Why weren't these idiots concerned about our Constitution when george w. bush was in office? Why are they only concerned now that we have a Democratic president?

puddleglum 5 years, 5 months ago

Would that Mr. Johnson had been around with his concerns when George Bush added dozens of trillions of debt to the Medicare system by adding in an unfunded, non-means tested prescription program!! LJW should have covered those tea parties! Oh, that's right, Mr. Johnson had no such principle then. How surprising that he has suddenly discovered his principles now.

great post, and worth repeating

puddleglum 5 years, 5 months ago

the constitution doesn't say anything about ipods and cell phones either......

guess the founding fathers weren't up to date?

just_another_bozo_on_this_bus 5 years, 5 months ago

" if this is the only limitation on government spending discretion, then it is really no limitation at all since just about any spending can be rationalized as somehow benefitting the general welfare."

It's not the only limitation. An elected Congress has to pass the spending bill, collect the taxes (or borrow from the Chinese or wealthy Americans who are flush with Reagan/BushCo tax cuts) to pay for it, then the president has to sign it, and quite possibly it might have to withstand legal and constitutional challenges in the court system. That's a very imperfect process, to be sure, but it's also a substantial limitation on spending.

just_another_bozo_on_this_bus 5 years, 5 months ago

"It doesn't make sense unless there are limits—what is the point of saying that Congress has the power to establish the post office in Article 1, Section 8, Clause 7 if Congress has the power to spend for the general welfare? Isn't that redundant?"

This redundancy is certainly redundant, but it doesn't create any internal inconsistency. I think the best explanation is that they wanted to make sure one of the first acts of the US Government was the creation of a postal system, it doesn't mean they wanted it to be the last act, as well.

salad 5 years, 5 months ago

Bush created the largest and most wasteful expansion of the federal government in our nations history: The Dept. of Homeland Security. Nary a complaint from anyone. The constitution also makes no provision for Medicare/Medicaide, the FAA, the FCC, Social Security, Federal Income tax, OSHA, FEMA, EPA, etc, etc.... I think we should get rid of the FAA because it's an unconstituional govt. program and let the airlines just wing it!

just_another_bozo_on_this_bus 5 years, 5 months ago

" The Supreme Court hasn't overturned a single spending bill on grounds of Congress lacking the power to pass it since Roosevelt was president."

Under the legal traditions (settled precedents, etc) of this country, I'd say that means it's a settled issue on some level.

"As for your other “limitations” those are laughable."

It's imperfect, but I can guarantee you that there are plenty of liberals, moderates and conservatives who can find innumerable pet projects they think are underfunded.

just_another_bozo_on_this_bus 5 years, 5 months ago

"They weren't creating a law binding the hands of the government, they were making a laundry list of suggested things Congress should get to work on?"

No, they were creating a democracy, pretty much the first one in the world, and they recognized that there could be no democracy without first establishing open and comprehensive means of communication. That it was first on the list was no accident.

puddleglum 5 years, 5 months ago

I thought fox news is a democracy. it is fair and balanced

yourworstnightmare 5 years, 5 months ago

Liberty_one said: "however, as I already pointed out, if this is the only limitation on government spending discretion, then it is really no limitation at all since just about any spending can be rationalized as somehow benefitting the general welfare. If that is your point of view, then where is the limitation on discretion? Does Congress have the unlimited power to spend on any program that it deems beneficial or are there limits?"

No, Congress does not have unlimited power under this scenario. The budget bill must be voted on and passed by both houses of Congress and must be signed by the president.

The balance of powers within the legislative and between the legislative and executive is the mechanism that determines spending. This is our democratic process as spelled out in sections 1-10. Nothing in the Constitution puts limits on spending except that a budget must be passed like any law and published.

As to the "general welfare" statement, you are substantially correct. Any spending can be justified as providing for the general welfare. It is up to our democratic process to set this limit (e.g. bills approved by Congress and the President).

Think about providing for the common defense. Can you prove that every military dollar spent is a direct protection to all citizens equally?

What about our military protecting other countries? Is this a direct effect on all American citizens?

If you answer yes, that protecting other countries keeps us safer, then it is a short leap to the idea that providing health care for those without it protects all citizens.

"Common defense" and "general welfare" are subject to the same distinctions and arguments. In your world, if spending on either does not directly benefit or protect all americans equally, then it is unconstitutional. This is nonsense.

puddleglum 5 years, 5 months ago

a republic and not a democracy? liberty one? worth repeating, again: libertarian reluctantly calls firetrucks to his home: http://www.theonion.com/content/node/32825

yourworstnightmare 5 years, 5 months ago

Liberty_one: "The president can indeed veto a bill but what then is the Supreme Court's check on Congress's power?"

Uh, its called hearing a challenge about the constitutionality of a law.

Liberty_one: "How can there be judicial review of a law if there are no rules to apply?"

There are rules to apply, enumerated in the Constitution. My point is that there are very few Constitutional guidelines for government spending.

Please name one Constitutional provision about the type of spending or the amount of spending that the government can do. Remember, we have already found the "general welfare" clause to be no real constraint at all, as it can be used to justify just about any spending.

Liberty_one, it seems that our Constitution does not go far enough in restraining government spending for your tastes.

Sorry, but that's the Constitution we have.

just_another_bozo_on_this_bus 5 years, 5 months ago

"Goodness no. A democracy is an awful form of government that is nothing more than a tyranny of the majority."

Jeez, are you really so desperate that you need to start splitting that hair?

just_another_bozo_on_this_bus 5 years, 5 months ago

Oh, come on. I think everyone here knows that this is a republic, but it was most certainly established by folks who fully intended it to be a republic based on democratic principles. If you're going to get tweaked out of shape every time someone uses the word "democracy" without spending two paragraphs amending it with all the cautionary tales about "tyrannies of the majority," then you'll find it difficult to get anyone to have a discussion with.

BTW-- would you prefer a tyranny of the minority?

just_another_bozo_on_this_bus 5 years, 5 months ago

"Article 1, Section 8, Clause 7: creating a post office and post roads Clause 9: creating courts of law Clause 12: raise an army Clause 13: build a navy Clause 15 & 16: provide for the militia Clause 17: buy land for forts, arsenals, dockyards etc."

I don't see any prohibitions of other spending in there. Can you find any elsewhere in the Constitution?

Jimo 5 years, 5 months ago

"Spending is unconstitutional if it is not authorized by the Constitution as an enumerated power."

No. Please refer to U.S. Supreme Court Justice Joseph Story's Commentaries on the Constitution of the United States, 1833, Vol. 3, Section 913. (page 665 in my edition) It is the foundational treatise on the subject of the Constitution. Story directly contradicts this claim that what the general welfare clause means to say is "to provide for the general welfare, in manner following (as enumerated)." He says such a view contradicts the origin of the clause at the constitutional convention, the precedent under the articles of confederation, and the general interpretation of law and grammar.

This is in direct contradiction to Madison's views that: if a particular measure be within the enumerated authorities vested in Congress, then taxes may be raised and spent on it; otherwise, if not, then it may not be. (Pres. Madison's veto language of March 3rd, 1817; also the Virginia Resolutions of Jan. 8, 1800, written by Madison) Story concludes in favor of the anti-Madison faction, often ascribed to Hamilton, that the general welfare clause operates independently and separately from the longer enumerated list of powers.

The U.S. Supreme Court has adopted Story's views expressly in U.S. v. Butler: "The [General Welfare] clause confers a power separate and distinct from those later enumerated, is not restricted in meaning by the grant of them...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." The Supreme Court has, in multiple subsequent cases, reaffirmed and broadened this interpretation, making the definition of "general welfare" a political question for Congress to answer at its discretion. The most recent major Supreme Court case affirming the general welfare interpretation was in 1984 (interestingly, dissented from by J. Brennan, one of the most liberal justices in the last century), holding grant money to States hostage to their passing a 21 year drinking age - certainly not an enumerated power!

So, no, spending is not unconstitutional just because it is not for an enumerated power.

Jimo 5 years, 5 months ago

Lib claims to be a law student? Porch - are you sure?

I've often found his take on policy interesting even if I haven't always agreed with him. (Frankly, Ron Paul should have been the GOP's nominee in 2008. He certainly wouldn't have won but her would have jerked the Party in the general direction of principled rationality - you know, freedom and tolerance.)

But the continual confusion between arguing what legal policy should be versus what it is, the shocking ignorance of how the law has evolved in American history, leads me to question your claim of yours that he is a law student. I mean, income tax = slavery? Taxing people = seizing property? No one acquainted with the law could put forward that legal, not policy, argument and not commit malpractice. Can you cite some posting?

optimist 5 years, 5 months ago

Some of you are just plain nuts. To put forth the idea that precedence is somehow a replacement for the amendment process makes the Constitution hollow.

Presedence has become a tool of the activist judiciary to incrementaly change laws they don't like. It is this gradualism that erodes the country's foundation and many don't even notice it.

The preamble of the Constition states that the purpose of the Constitution is to "secure the blessings of liberty to ourselves and our posterity". Each generation has gradually adopted policies, with the greatest of intentions, that deprive future generations of liberty with the premise of securing social and economic security. This health care plan will be no different. It is brought forth by well intentioned people who fail to consider the expected evolution of beuracracies of this type. It will eventually become the monster we all know it will and there will be no way to unring the bell.

tbaker 5 years, 5 months ago

Bart Johnson nailed it. Bravo!

Since the 1930s, our country has stood by and watched helplessly as our Supreme Court - the great binding arbiter in all things constitutional - allowed our federal government to metastasize into the massive Fedzilla we have today. They have essentially permitted the federal government to ignore the finite list of enumerated powers in the constitution and decide for themselves the limits of their own power. And - no surprise - the limits on that power have been few.

Not too many in the press have given this a lot of attention, but the fact remains our constitution does give the individual states the power to nullify laws passed by the federal government. Its in the tenth 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."

So far, seven states have passed resolutions affirming sovereignty under the 10th Amendment: Alaska, Idaho, North Dakota, South Dakota, Oklahoma, Louisiana, and Tennessee. Similar resolutions have been introduced in thirty-seven states in the past year. Sure - they are non-binding but they foretell trouble for the President and congress if they press their big government, big spending agenda much harder. Thats not the sort of change the people voted for.

If a health care bill is passed using the "nuclear" option and forced onto the country, I suspect the 10th Amendment movement will blossom. The outrage in the country is palpable. The states have a nuclear option too.

tbaker 5 years, 5 months ago

I suppose that must mean the 37 states who already have or are presently debating resolutions asserting their sovereignty are loony? I guess that would mean some form of mass psychosis has motivated them to do this? Could it be the federal government has long ago stepped well beyond it's constitutional authority and the states are finally to the point they feel threatened by it? Do you know where your State senator and representatives stand on the matter of SCR 1609? Perhaps you should check. It may be you are being represented by a loony.

Jimo 5 years, 5 months ago

Lib - I named your case at 5:09pm. Heck, I even quoted the core holding! I'm really hurt that you didn't bother to read and reflect. And FRCP 11(b)(2) has existed in largely the same form since the 1930s when the messy world of common law causes of action were modernized.

BUT, most importantly, you're just not paying attention to the point(s).

  1. There is no single case you're seeking to reverse but rather 75 years of precedent (precedent that formally adopts scholarship a century older), one case built upon another.
  2. You're free to argue that the law is X but should be Y but you aren't free to claim that the law is Y and not X.
  3. Pleadings free you from judicial sanctions not malpractice (similar and with some overlap but distinctive). You can't tell a client that the law is Y and not X regardless of your compliance with procedural rules.
  4. The district court is not free to overturn precedent (if you're really talking about a direct, on-point challenge to the precedent). The rule just saves you from sanctions. For a precedent set by the USSC, you would lose at trial and then appeal, lose, and then appeal again, interest the SC that there's any point to hearing your appeal, and then win. (You've probably got better odds of being elected Pope.)

Look, you're free to advocate any policy you wish as not just better but so overwhelmingly better to the existing law than the long established holdings must be overturned. But, you shouldn't be misstating what the law is. What's more, your advocacy would be much improved if you spent more time reading the historical development of the law. Clearly, you seem to have an interest in it. You don't have to agree with the policy implications but you should at least understand that those who preceded you didn't just make it all up because they were evil, misguided, or foolish but rather for good reason (even if not good enough for you).

Jimo 5 years, 5 months ago

For those interested, and aren't up for Justice Story's quite long, academic, and, being from the early 19th century, a bit antiquated (since it obviously doesn't address all that came later) treatise on constitutional law, may I recommend two interesting works.

  1. A History of American Law by Lawrence M. Friedman. The NYT called it "a stupendous achievement." (Note to Mr. Johnson: the New Deal makes an appearance on page 548, out of 584 pages total. Considering that this Madisonian "view of the clause [that] prevailed until Franklin Roosevelt," one wonders why Friedman wasted over 500 pages describing this unchanging state of law.)

  2. From the Univ Press of Kansas, a bit of a historical/political snapshot more than legal of a key point in the evolution of government's scope of power - Theodore Roosevelt, the Progressive Party, and the Transformation of American Democracy, by Sidney M. Milkis. It's a highly readable explanation of the time when the American people finally began to shake free from the mindset that business was constitutionally free to act without governmental regulation whether at the state or federal level.

Alexander Neighbors 5 years, 5 months ago

they have already spent soooo much for everyone but the tax payers

Jimo 5 years, 5 months ago

¡Ay yay yay! We'll there's little point to beat a dead horse much further.

In parting, Pilgrim2 has an interesting, and for LJW, fairly accurate quote earlier. It is certainly true that Madison, drafter of the Constitution itself, and a "Founder," held the view that Congressional power was be as constrained as possible. That's probably why such a view is often described as the Madisonian view. (Whether he held such a narrow view in preparation of the Constitution or came to it later after a falling out with his fellow Founders is of some dispute. And of course, the Constitution and its various contributors, let alone the thinking of its various 'enactors' belie any real attempt to know the minds of the Founders, the holy grail of "original interpretation.")

My original point, directing from this letter, is that this Madisonian view was immediately challenged and defeated starting with Washington's Administration, not only for Congress' powers but those of Executive and the Judiciary. And challenged by the other Founders! There was no such pre-modern, mystical time when the law was what the law was, before dishonest people twisted it to mean something other than what it obviously means.

One is free to argue that the narrow view pushed by Madison is the better one but one is not free to claim (honestly) that a broad view doesn't also have (a) excellent pedigree, and (b) the actual state of law on its side.

Jimo 5 years, 5 months ago

"because of the tenth amendment Roe v. Wade should have been decided differently."

At the risk of making this thread survive long past its proper termination point, I don't believe anyone would have a difficult time arguing in the alternative that if the 10th Amend. were to be more muscular, that, while the reasoning of Roe might change, the result would not. The 10th Amend. reserves for the states or the people those powers not granted to the federal government.

Arguably, the Roe court did this: hold the intimate and personal matter of reproduction and self-identity within the supreme purview of the people, free from unwarranted and unjustified interference by government, whether state or federal. (Technically, the original 10th wouldn't have allowed any constitutional restrictions upon states not 'enumerated' but the 14th Amendment put paid to that sort of 'State over People' interpretation.)

Satirical 5 years, 5 months ago

Liberty_One....

You will eventually find out like I have, that arguing with porch_person is a waste of time. He doesn't have the cognitive faculty to engage in a real discussion. Instead he puts words in your mouth, requires you to repeat yourself numerous times because he has poor reading comprehension skills, will make up definitions of words, and won't admit that "A" is different than "B."

Eventually you will come to the same conclusion I did, he isn't worth your time and is best ignored. I know it is hard to resist the temptation to respond to ignorant comments, but when you wrestle a pig, you both get dirty and the pig likes it.

P.S. Don't you find it humorous that those with no legal training like to argue what the law means and think people who have legal training don't know what they are talking about? That is like someone who has never taken a Russian class, been to Russia, or heard Russian, tell someone who has had years of formal training in Russian, that they know more about speaking Russian. This is the type of audience you get when you blog - idiots who think they know everything.

Satirical 5 years, 5 months ago

Liberty_One...

Oh, and I almost forgot, porch_person won't respond to questions when directly asked either. So don't waste your time with that either in an attempt to initiate a back and forth dialogue.

Satirical 5 years, 5 months ago

Liberty_One...

You are still under the delusion that you can reason with porch_person. You can't.

Just because he gets the last word doesn't mean he is right. And anyone else reading this who believes that is an idiot, so why do you need to convince them? Your actions are your choice, but I knew someone else on the LJWorld who acted just like him, "duplenty." Trust me, when you ignore them for long enough, they will stop talking to you. But if you keep responding to him, it will only encourage him.

It's up to you.

Satirical 5 years, 5 months ago

Liberty_One…

True, it is sometimes fun to poke fun of them (that’s why I came back after a long absence), but if you actually want to have an argument and a legitimate debate, you are barking up the wrong tree.

“Every time porch says (laughter) you know it means he's furious.” – LO

I thought it meant he was crying, because he doesn’t know how to counter the argument, but desperately needs to have the last word.

staff04 5 years, 5 months ago

I think Liberty University is considered an "East Coast law school."

yourworstnightmare 5 years, 5 months ago

Liberty_one, you didn't include the whole list of congressional powers, which is longer and includes the final statement: "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."

Pay attention here: "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"

Note the statement "...foregoing Powers, and all other Powers vested by this Constitution..."

The list is not exhaustive nor is it exclusive. "Promoting the general welfare" is also a Power enumerated in the Constitution.

yourworstnightmare 5 years, 5 months ago

Liberty_one, you seem to wish our Constitution is something it is not.

You ignore sections that do not jibe with your feelings on how the Constitution should be, and you make up restrictions that just aren't there.

You are engaging in activist liberal reinterpretation of the Constitution. By "liberal" I don't mean political philosophy, but rather practical behavior. Seeing things that aren't there and ignoring things that are, such that the Constitution fits with your ideology.

Satirical 5 years, 5 months ago

yourworstnightmare...

The "necessary and proper clause" is not a separate grant of authority. It must be coupled with another grant of authority, often the commerce clause. The key phrase in this instance being "...for carrying into execution the foregoing powers..."

If it were a separate grant of authority, it could lead to unlimited power. http://en.wikipedia.org/wiki/Necessar...

Satirical 5 years, 5 months ago

yourworstnightmare...

I think I need to clarify my previous statement so there is no confusion (except for people like porch_person who is confused by everything).

The N & P clause is a power of congress (not a limitation), but it must be coupled with another grant of authority to be utilized.

MyName 5 years, 5 months ago

/popcorn

This is almost entertaining. But a quick question. Does (laughter) sound like a giggle, or is it more like the braying of an ass?

Satirical 5 years, 5 months ago

MyName...

I thought we already decided when porch_person writes "(laughter)" it really means he is crying. I imagine it is a whiny cry, like when you take candy from a baby. Or maybe a deep sob. Perhaps you should ask him/her.

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