Tuesday, August 18, 2009

The only health care question you need to ask

"I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power." ~ Thomas Jefferson, letter to William Charles Jarvis, 1820

People are rightly concerned about what's in HR 3200, the America's Affordable Health Choices Act of 2009, and, when they can find a representative, are asking tough and pointed questions about the components of the bill and how it will work.

But the questions are all about the details - who will do what, how will it work, what does section 1151 really mean?

These questions, while pertinent and important, miss the overriding and first principle of any legislation or action of congress: The Constitution.

Members of Congress have taken an oath to uphold the Constitution of the United States.

The first question we should ask - and demand an answer to - is this:

Where in the Constitution does Congress get the authority to implement any health care law?

If they cannot provide the section number, then they are bound by their oath to vote no on this bill.

If they cite their ability to provide for the 'general welfare' of the United States, you can remind them what James Madison wrote in vetoing a public works bill in 1817:

To refer the power in question to the clause "to provide for common defense and general welfare" would be contrary to the established and consistent rules of interpretation, ...

Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms "common defense and general welfare" embracing every object and act within the purview of a legislative trust.

It would have the effect of subjecting both the Constitution and laws of the several States in all cases not specifically exempted to be superseded by laws of Congress, it being expressly declared "that the Constitution of the United States and laws made in pursuance thereof shall be the supreme law of the land, and the judges of every state shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding." Such a view of the Constitution, finally, would have the effect of excluding the judicial authority of the United States from its participation in guarding the boundary between the legislative powers of the General and the State Governments, inasmuch as questions relating to the general welfare, being questions of policy and expediency, are unsusceptible of judicial cognizance and decision.

A restriction of the power "to provide for the common defense and general welfare" to cases which are to be provided for by the expenditure of money would still leave within the legislative power of Congress all the great and most important measures of Government, money being the ordinary and necessary means of carrying them into execution.


I am not unaware of the great importance of roads and canals and the improved navigation of water courses, and that a power in the National Legislature to provide for them might be exercised with signal advantage to the general prosperity. But seeing that such a power is not expressly given by the Constitution, and believing that it can not be deduced from any part of it without an inadmissible latitude of construction and reliance on insufficient precedents; believing also that the permanent success of the Constitution depends on a definite partition of powers between the General and the State Governments, and that no adequate landmarks would be left by the constructive extension of the powers of Congress as proposed in the bill, I have no option but to withhold my signature from it, and to cherishing the hope that its beneficial objects may be attained by a resort for the necessary powers to the same wisdom and virtue in the nation which established the Constitution in its actual form and providently marked out in the instrument itself a safe and practicable mode of improving it as experience might suggest.
(emphasis added)

You don't have to use the entire quote - you can summarize. But if this is too long, you can try these:

"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, subject to particular exceptions." - James Madison, Letter to Edmund Pendleton, January 21, 1792 _Madison_ 1865, I, page 546

"I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constitutents." - James Madison, regarding an appropriations bill for French refugees, 1794

"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, Letter to James Robertson, April 20, 1831 _Madison_ 1865, IV, pages 171-172

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

Without an enumerated power in the Constitution to implement HR 3200, our members of Congress have a choice: they can uphold their oath and our Constitution by voting 'no'; or they can show their disdain for the the supreme law of the land - and suffer the consequences.

They work for us and should tell us now - before they return to Congress for the next session - which option they choose.

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