Posted by: New Class Traitor | March 27, 2010

Is 0bamacare constitutional?

JCM on C2 addresses the (un)constitutionality of 0bamacare:

In my wanderings through the innerwebz in pursuit of opinions regarding the Constitutionality of Health Care Reform (HRC), I came across a lot of stuff. And instead of doing a massive link dump, I’ve chosen to bore you with with my own take on all those opinions and add my own to the cacophony.

The ORP (Obama – Reid – Pelosi) Troika is basing HRC on three legs to make their argument for the Constitutionality of the bill. Presuming they care about such esoteric notions as Constitutionality.

1 – The General Welfare clause.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

2 – The Interstate Commerce Clause

Article 1 Section 8

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

3 – The taxing power granted in the 16th Amendment.

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

Summarizing as briefly as possibile the objections to bringing HRC under one or all of this clauses. The objections will be as insofar as possible from the postion of an Constitutional Originalist. I will not be considering the shift away from original intent, especially since the FDR and the New Deal courts.

General Welfare

This clause has two limitations in original intent. The first is it is constrained by enumerated powers of Article 1 Section 8. Second is that it is GENERAL not INDIVIDUAL.

Health Care especially the provision of health care is not an enumerated power of Congress. Madison was quite clear, the General Welfare Clause is constrained by the enumeration of powers. Note the specific language used in Article 1 Section 8. . . . and general Welfare of the United State; . . .

Could Health Care be construed in some manner as General Welfare of the United States? The answer would [s]till be no. General, means just that. The “welfare” the action provides is for the General public that benefits The United States, everyone equally and simultaneously. General Warfare would by no means consider diminishing one person, to benefit another. Even at [its] best HRC is still individual welfare. The difference is having a military to protect all of us, and a soldier assigned as a personal bodyguard.

Commerce Clause

Congress is empowered to regulate commerce. In [its] original intent, it was the commerce, not industry and production that was regulated. Again note the language, to regulate Commerce with . . . , and among the several States, . . . the purpose of the commerce clause was to keep trade and business, especially between states, free and open. They expressly did not want tariffs and disparate rules making trade between the states more difficult. The commerce clause restricts the states, not businesses and industry from operating.

This clause is the singularly […] most abused, it has become the way to regulate business in the United States. Not only business, but the lack of business. In Wickard the court ruled individual production[,] of a product for individual consumption, was interstate commerce and therefore subject to regulation. HRC takes that concept to the final stage, that the lack of commerce, i.e. choosing not to buy health insurance is interstate commerce.

Taxing Powers

This why the IRS is being included in HRC as the revenue generating and enforcement authority. This amendment give the power to tax to Congress, it doesn’t give Congress the power to provide a service to the people, and most definitely not the power to use the coercive power to government to require individuals accept a service provided.

I am certain HRC will be challenged on all three legs, as well as other points. From an originalist perspective the decisions should be clear cut, HRC doesn’t have a Constitutional leg to stand on. How will the courts rule with the more contemporary interpretations, whether or not originalist interpretations will hold that is the trillion dollar question.

The ORP Troika also throw another thing on that the table, hoping to confuse the issue.

Health Care is a Right.

Umm, no. Health Care is NOT a Right. Yes, I know, I’m a mean, evil bitter clingy right winger. This is where subtitles of language are very, very important. To be clear, you do have a right to health care, but health care is not a right. There is a world of difference between the two phrases.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.

Rights are intrinsic, not extrinsic. The individual is endowed with rights. These rights are a component a condition of being an individual. Theses intrinsic, endowed, inalienable rights can be abridged, denied, suppressed, oppressed by men and governments. That doesn’t mean they still don’t existed [sic], just that these rights are being unjustly denied.

Rights are not extrinsic, they are not provided by external sources. The same forces that can deny them can protect them but not grant them. The founding of this country is based on the premis[e] that government deriving [its] just powers from the consent of the governed would protect those rights. Government is not the source, cannot provide a right. Government can merely can be a protector.

Access to health care has on impact on life, of that there is no doubt. Access to air also has and impact on life. It would be untrue to say, air is a right. You have a right to air, to maintain life. No one, can legally, morally or justly deny you air, generally that would be called murder. When air, or anything external is the right is where things run amok. When air is a right, it implies that air should, no must, be provided the individual. That someone else must breath for the individual. When something, air or health care is the right, it places demands on someone else to provide it for the individual. Not that the right to that “thing” be protected, but that, that “thing” be provided.

Placing this demand on another individual is an just denial of their rights. This is why rights are intrinsic, operating out from, exercised by the individual. Not provided to the individual. The individual can exercise his rights, unencumbered to go out and obtain health care. The right to health care.

This extrinsic vs. intrinsic view of rights is the core of Obama’s 2001 comments in an interview that the Constitution is flawed in that is a document of negative rights for government, instead of positive rights. When rights are intrinsic then government must be constrained from denying and abridging those rights, government must be limited in its power. With the positive rights model, government must be empowered to provide not only grant and provide rights, but provide the substance of those rights as well.

HRC is fatally flawed when viewed from an Originalists Constitution point of view but also from an the perspective of individual rights in the classical liberal point of view.

0bama arguing for positive instead of negative rights cuts to the heart of the difference between the American and French revolutions, with 0bama taking the French side, and classical liberalism the American side. At heart, it emanates from what Thomas Sowell calls the “constrained” vs. “unconstrained” visions of human nature.

In the unconstrained vision, all human problems are evntually amenable to solution if only the wisest men (the “anointed”) get the power to do so and guarantee every individual his/her every need, with the aid of a large government apparatus. “From each according to his ability, to each according to his need” is a classic expression of the unconstrained vision. (A physicist might say it presupposes a Newtonian, deterministic universe.) The unconstrained vision naturally leads to expansive government and “positive rights” of individuals (such as putative rights to a job, to a minimum level of income, to “free” education and “free” healthcare,…) Communism, Nazism, and Islamism are extreme “unconstrained” ideologies: more moderate examples are Euro-style social democracy and the clericalist welfare statism that goes by the name of “Christian democracy” in many European countries. American left-liberalism is likewise in the “unconstrained” camp.

In the constrained vision, the human power to solve human problems is limited by practical constraints, by the “law of unintended consequences”, and by the limits of human intellect —  be it an individual’s or the collective one of an oligarchy. (A physicist might think of a nondeterministic universe — quantum, chaotic, or both). As the constrained vision is inherently pessimistic about the ability of government (or any human endeavor) to cure all social ills, it tends to err on the side of caution where it comes to government power, and naturally leads to limited government constrained by negative rights (things government is not allowed to do to you or cannot force you to do). Classical liberalism and libertarianism are typical expressions of the “constrained” vision.

Note finally that the above discussion has not directly raised the Tenth Amendment and the limits it places on Federal power (although the Commerce Clause indirectly references it): “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.” In this context, “the United States” refers to “the Federal government”. Obviously, neither the Constitution nor the Amendments delegate the power to impose a healthcare mandate on citizens to the Federal government…

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Responses

  1. Thanks for the props!

    Excellent continuation on the theme of the opposing world views.

  2. […] The welfare the action provides is for the General public that benefits The United States …Read More Cancel […]

  3. A reflection upon accidental rereading: in a sense, the dispute between “positive rights” (you are guaranteed X by the government, Euro style) and “negative rights” (government must not take away your right to X, Founding Fathers style) parallels that between the Positive Golden Rule (“do unto others as you would be done by”, Mt. 7:12, Lk 6:31) and the Negative Golden Rule (“that which is hateful unto you do not do unto any other”, which Hillel stated was the essence of the Torah [Talmud:Shabbat 31a]). I, for one, stick with the negative golden rule: I have no desire for, e.g., a masochist to do to me as he would be done by 😉


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