By Publius Huldah
According to an article posted by Lesley Swann of the Tennessee Tenth Amendment Center, the federal obamacare Act doesn’t actually require The People to submit to obamacare.1
Accordingly, HHS Secretary Kathleen Sibelius is demanding that The States set up State Insurance Exchanges, by means of which The States will force The People into obamacare.
While 20 States have already given notice that they will not implement obamacare by setting up the State Exchanges; Tennessee’s RINO Governor, Bill Haslam, is “undecided” as to whether he will force Tennesseans to submit to obamacare.
But Haslam has no lawful authority to force The People of Tennessee into State Exchanges. If he does it anyway, he will commit the following five (5) violations of Tennessee Law:
1. The Tennessee Health Freedom Act
The Tennessee Legislature enacted in 2011 the Tennessee Health Freedom Act, codified at Tenn. Code Ann. Sec. 56-7-1016. 2
Under this Act, no public official, employee, or agent of Tennessee may force The People of Tennessee to purchase health insurance or impose any penalty for not purchasing such insurance.
So if Haslam attempts to force The People of Tennessee to participate in a State Insurance Exchange, he will violate the Tennessee Health Freedom Act.
2. The State Legislature makes the Laws – not the Governor
The Constitution of the State of Tennessee says at Article II:
“Section 1: The powers of the government shall be divided into three distinct departments: legislative, executive, and judicial.
Section 2: No person or persons belonging to one of these departments shall exercise any of the powers properly belonging to either of the others, except in the cases herein directed or permitted. [boldface mine]
Section 3: The legislative authority of this state shall be vested in a General Assembly, which shall consist of a Senate and House of Representatives….”
If Haslam attempts to force Tennesseans into a State Insurance Exchange, he will violate the Separation of Powers Principle enshrined at Art. II, Sections 1 – 3.
3. The Governor’s Powers are Enumerated, Defined, and Strictly Limited.
Here is a complete list of the enumerated powers and duties of the Governor of Tennessee. Article III provides that:
Section 1: The executive power of the state is vested in a governor [See Sec. 10 below].
Section 5: The governor is commander-in-chief of the State Militia
Section 6: The governor may grant reprieves and pardons.
Section 8: The governor may require written information from officers in the executive department, about their duties.
Section 9: The governor may, on extraordinary occasions, convene the General Assembly.
Section 10: The governor shall take care that the laws be faithfully executed.
Section 11: The governor is to give the Legislature information on the state of the government, and recommend matters for their consideration.
Section 14: The governor may temporarily fill vacancies in office.
Section 15: The governor is to be keeper of the Seal of the State of Tennessee.
Section 16: The governor is to sign and seal all grants and commissions of the State.
Section 18: The governor is to sign, or veto, or allow to become law without his signature, every Bill, Joint Resolution or Order passed by the Legislature. He may reduce or disapprove sums of money appropriated for specific items.
Article VI, Section 11: When any judge of the State Supreme Court is disqualified from presiding over a case, the governor is to specially commission another person to serve as judge on that case.
Article VIII, Section 2: The governor is to appoint certain officers of the State Militia.
That’s it! That’s all the governor of the State of Tennessee has lawful authority to do. He has no lawful authority to make laws. He has no lawful authority to force Tennesseans into a Health Insurance Exchange. If Haslam attempts to do this anyway, he will usurp powers not delegated to him by the Tennessee Constitution.
4. The Governor’s Duty is to Enforce the Laws the Legislature Makes!
Note that Art. III, Sec. 10 requires the governor to “take care that the laws be faithfully executed”. As long as the laws made by the Legislature are constitutional, the governor is obligated to enforce them! This means that Haslam must refuse to implement the State Exchange. If he doesn’t refuse to implement the State Exchange, he will be guilty of dereliction of his Constitutional Duty.
5. The Governor is Required by his Oath to Obey the Tennessee Constitution
Article X, Section 1, of the Tennessee Constitution requires the governor to take an Oath to support the Tennessee Constitution.
If he takes his orders from Kathleen Sibelius instead of from the Tennessee Constitution and the Tennessee Legislature, he will violate his Oath to support the State Constitution.
Article X, Sec. 1 of the Tennessee Constitution, and Art. VI, clause 3 of the federal Constitution, also require Haslam to support the federal Constitution. Obamacare is altogether unconstitutional as outside the scope of the legislative powers delegated to Congress. This is plain and clearly proven. 3 Thus, Haslam is required by Oath to refuse to enforce obamacare because obamacare is unconstitutional.
If Haslam Violates the State Constitution and State Law, he must be Impeached and Removed.
Article V, Sec. 4 of the Tennessee Constitution provides that the governor shall be liable to impeachment whenever, in the opinion of the Tennessee House of Representatives, he commits any crime in his official capacity which requires disqualification.
“1. An act which violates a law, divine or human; an act which violates a rule of moral duty; an offense against the laws of right, prescribed by God or man, or against any rule of duty plainly implied in those laws. A crime may consist in omission or neglect, as well as in commission, or positive transgression…”
Any governor who ignores the State Constitution, ignores State law, violates his Oath of Office, and usurps power must be removed from office. 4
1I haven’t read the obamacare Act. It is over 2000 pages long, and is being implemented right now by thousands of more pages of HHS & IRS Rules. Our Framers warned us of laws which were
“… so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow…”(Federalist Paper No. 62, 4th para from end)
2 The hyperlinks at lexus nexus don’t work. To find the text of the Tennessee Health Freedom Act, click on http://www.lexisnexis.com/hottopics/tncode/ then type in the search term, “Tennessee Health Freedom Act”, jump thru the hoops, and you will find the Act. It is short and worth reading.
3 See, e.g. these model Nullification Resolutions for obamacare
4 Impeachment and removal from office for usurpations of power is expressly authorized by our federal Constitution: See, as to removing a President who usurps power: Federalist Paper No. 66, 2nd para, and No. 77, last para. As to removing federal judges who usurp power, see Federalist Paper No. 81, 8th
December 12, 2012
By Publius Huldah.
Our federal Constitution is one of enumerated powers only. This means that WE THE PEOPLE, who ordained and established the Constitution, listed therein every power We delegated to the federal government. If We didn’t list a power, the federal government doesn’t have it.1
Furthermore, we delegated only a very few powers to the federal government.
Accordingly, Congress has strictly limited legislative powers over the Country at large. These powers are listed primarily at Art. I, §8, clauses 3-16, and are restricted to war, international commerce & relations; and domestically, the creation of an uniform commercial system: weights & measures, patents & copyrights, a monetary system based on gold & silver, bankruptcy laws, mail delivery & roads. Several Amendments delegate to Congress some power over civil rights.
These enumerated powers are the only areas where the federal government has lawful authority over The States and The People in The States. In all other matters [except those listed at Art. I, §10]the States and The People retain supremacy, independence, and sovereignty. Go here for a complete list of all of Congress’ Enumerated Powers.
Obamacare is altogether unconstitutional because it is outside the scope of the legislative powers We granted to Congress. Nothing in Our Constitution authorizes the federal government to control our medical care (or to exercise the other fearsome powers in the Act).
I challenge those five (5) lawless judges on the supreme Court [Roberts, Kagan, Sotomayor, Ginsberg, & Breyer], all other totalitarians, liberals, and parasites who support obamacare, to point to that clause of The Constitution where We delegated to the federal government power to control our medical care.
Article I, §8, clauses 1-16: What it Really Means.
Those five (5) lawless judges on the supreme Court looked at Art. I, §8, cl.1, and found power in Congress and the Executive Branch to take over our medical care – even to decide whether we will receive medical treatment or be denied medical treatment.2
And how did The Lawless Five do this? I’ll show you. But first, let’s see what the Constitution really says. Article I, §8, clauses 1 & 2 read:
Clause 1: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;” [boldface added]
Clause 2: “To borrow Money on the credit of the United States;”
Immediately after Clauses 1 & 2 follows the list of enumerated powers WE delegated to Congress:
- Clause 3: To regulate “commerce” [For the Truth about the “commerce clause”, go here];
- Clause 4: To establish uniform laws on Naturalization and on Bankruptcies;
- Clause 5: To coin money & regulate its value, and fix the standard of weights & measures;
- Clause 6: To punish counterfeiting;
- Clause 7: To establish Post Offices and post Roads;
- Clause 8: To issue Patents and Copyrights;
- Clause 9: To set up federal courts “inferior” to the supreme Court [one may well ask how any court can be “inferior” to the supreme Court];
- Clause 10: To punish Piracies & Felonies on the high seas and offenses against the Law of Nations;
- Clause 11: To declare War, grant Letters of Marque & Reprisal, and make rules for Captures;
- Clause 12: To raise and support Armies;
- Clause 13: To provide and maintain a Navy;
- Clause 14: To make Rules for the land and naval Forces;
- Clause 15: To call forth the Militia; and
- Clause 16: To provide for organizing, arming, disciplining the Militia.
Add to this short list of enumerated powers; the “housekeeping powers” itemized in the paper linked here; the salaries authorized by Art. I, §6, cl. 1; Art. II, §1, next to last clause; Art. III, §1, cl. 1, and others on the civil list; together with the Amendments addressing civil rights; and you have the sole purposes for which Congress is authorized to levy and collect taxes, borrow money, and spend money for the Country at Large.
And this is precisely what James Madison, Father of Our Constitution, says in Federalist Paper No. 41 (last 4 paras). Some people were concerned that
“…the power ‘to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,’ amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. “ (4th para from end).
Madison answered the above objection by saying that one would be grasping at straws to stoop to such a silly “misconstruction”. He said:
“Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms ‘to raise money for the general welfare’ .” (3rd para from end)
“But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? … Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning … is an absurdity…” (2nd para from end)
In the final paragraph of Federalist No. 41, Madison says Art. I, §8, cl. 1 does not vest in Congress a power to legislate in all cases whatsoever: Clause 1 is merely a “general expression”, the meaning of which is “ascertained and limited” by the clauses which “immediately follow” it.
To put Madison in modern English: Clauses 1 & 2 grant to Congress the power to raise money; clauses 3-16 enumerate the objects on which Congress may appropriate the money so raised, thus limiting clauses 1 & 2.
THAT is the Constitution We ratified.
What the Lawless Five Assert it Means:
See where it says in Clause 1, “To lay and collect Taxes”? The Lawless Five assert that this phrase authorizes Congress to lay & collect taxes for any purposes whatsoever.
They IGNORED the “specification of the objects [Clauses 3-16] alluded to by these general terms” [Clauses 1 & 2] – the “enumeration of particulars” which “explain and qualify” “the general phrase”.
In effect, they repealed Clauses 3-16. In a nutshell, the Lawless Five asserted that Congress and the President may do whatever they want to us. Just call it a “tax”.
What can WE Do?
First, we must disabuse ourselves of the monstrous lie that the federal government We created by Our Constitution is the exclusive and final judge of the extent of the powers delegated to it; and that the opinion of five judges, not the Constitution, is the sole measure of its powers. 3 That is a pernicious ideology antithetical to our Founding Documents and Principles. Once you understand that, our remedies are readily apparent:
1. Impeach Federal Judges who violate their Oaths of Office. The supreme Court is merely a creature of the Constitution and is completely subject to its terms; and when judges on that and lower federal courts – who serve during “good Behaviour” only (Art. III, §1, cl. 1) – usurp power, they must be removed from office. Alexander Hamilton writes in Federalist No. 81 (8th para) of:
“… the important constitutional check which the power of instituting impeachments in … [the House] … and of determining … them in the … [Senate] … give[s] to … [Congress] … upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations…” 4
We must elect Representatives and Senators who will support our Constitution by impeaching & removing usurping federal judges. We must elect people who will rid of us The Lawless Five.
2. Elect Representatives and Senators who will also repeal obamacare and dismantle everything which has been implemented so far.
3. Elect Romney. He has promised he will “repeal” obamacare. His Oath of Office – which is “to preserve, protect and defend the Constitution” – requires him to refuse to implement obamacare. By Executive Order, he must refuse to implement it, he must reverse all implementation in effect when he takes office, and he must rescind the unconstitutional rules [see, e.g., Art. I, §1] made by the baby-killing totalitarians who presently infest the Department of Health & Human Services.
4. States must nullify obamacare. Here are Nullification Resolutions States may use to nullify obamacare and the HHS rules.
State officials, legislators, and judges all take The Oath to support the federal Constitution (Art. VI, cl. 3); and that Oath requires them to nullify obamacare.
5. We the People must stop deceiving ourselves about the motives of people such as obama and the Lawless Five. They are not ‘basically decent people who just have different opinions”. They are Dolores Umbridges who are determined to reduce us to abject slavery. PH.
1 Contrary to the misconstructions long and unlawfully applied by the federal government, the federal Constitution is one of enumerated powers only. E.g.:
“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people.” (Federalist No. 45 , 9th para)
“…the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignity over all other objects….” (Federalist No. 39, 3rd para from end)
“…the general [federal] government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects...” (Federalist No. 14, 8th para)
2 There is much more in obamacare than transferring to the Executive Branch power to decide whether we will receive or be denied medical care. It is a parade of horribles worthy of Stalin, Hitler, and Anita Dunn’s hero, Mao. It transfers total control of our lives to the Executive Branch.
“1. Resolved, That the several States composing the United States of America, are not united on the principle of unlimited submission to their General Government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a General Government for special purposes,–delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral party, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.” [boldface mine]
4 With obamacare, the Lawless Five colluded with Congress & the Executive Branch to subvert Our Constitution. Our Framers warned us of such connivances between the branches of the federal government:
Alexander Hamilton tells us that Congress can’t successfully usurp powers unless The People go along with it! In Federalist No.16 (next to last para), he points out that because judges may be “embarked in a conspiracy with the legislature”, the People, who are “the natural guardians of the Constitution”, must be “enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority.”
James Madison says in Federalist No. 44 (last para before 2.):
“…the success of the usurpation [by Congress] will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; …” [boldface added]
Hamilton and Madison are telling us that We don’t have to go along with obamacare just because Five totalitarians on the supreme Court want the Executive Branch to have total control over our lives. This is where we draw the line. We must Resist this tyranny. PH
July 5, 2012
By Publius Huldah.
Bill O’Reilly (Fox News) made our Framers proud when, on March 26, 2012, he correctly explained [probably for the first time ever on TV] the genuine meaning of the interstate commerce clause. O’Reilly’s guest was Big Government Progressive Caroline Fredrickson, Esq., of the inaptly named “American Constitution Society”. In trying to defend obamacare, she said that our Framers intended to grant to Congress extensive powers over the “national economy”:
“When the Founding Fathers adopted the Constitution, they put in the commerce clause ah specifically so that Congress could actually regulate interstate commerce. They envisioned a national economy, and we really have one now, and to the tune of over two trillion dollars, health care makes up a big big part of that and so it’s completely within the power of ah Congress to pass this legislation [obamacare] and to attempt to provide some reasonable regulation…”
But what she said is not true! Accordingly, O’Reilly responded:
“The interstate commerce clause was put in so individual States could not charge tariffs [for] going from one state to another. So, for example, Pennsylvania would say to New Jersey, ‘Hey, you can’t bring in anything here from New Jersey unless you pay us 2% on it.’ ”
Bravo, O’Reilly! That is precisely the purpose of the interstate commerce clause. James Madison, Father of our Constitution, wrote in Federalist No. 42 (9th para):
“… A very material object of this power [to regulate interstate commerce] 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 … 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…”
And Alexander Hamilton wrote in Federalist No. 22 (4th para):
“…’ The commerce of the German empire … is in continual trammels from the multiplicity of … duties which the several princes and states exact upon the merchandises passing through their territories, by means of which the … navigable rivers [of] … Germany … are rendered almost useless.’ Though the … people of this country might never permit this … to be … applicable to us, yet we may … expect, from the … conflicts of State regulations, that the citizens of each would … come to be … treated by the others in no better light …”
So! What our Framers said was that the purpose of the interstate commerce clause is to authorize Congress to prevent the States from imposing tolls and tariffs on articles of import and export – merchandize – as they are transported through the States for purposes of buying and selling.1
But Fredrickson apparently has no idea what our Framers said. She dug deeper:
“Actually this was a major issue at stake in the adoption of the Constitution was the ability of our national government to deal with national issues and, let’s look a little bit at what’s happened in the 20th century…”
What? Our Framers made a “major issue” of their determination to grant to Congress power over whatever it might in the future deem to be a “national issue”?
Rubbish! What Fredrickson said is demonstrably false. Our Framers said the exact opposite of what she represented. In Federalist No. 45 (9th para), Madison identified the “national issues” Congress would be dealing with:
“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; … The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people….” [boldface mine]
In Federalist No. 39 (3rd para from end):
“…the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignity over all other objects.” [boldface mine]
and in Federalist No. 14 (8th para):
“…the general [federal] government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects.…” [boldface mine]
Do you see? Our Framers drafted a Constitution which established a Federation of Sovereign States united only for the limited purposes enumerated in the Constitution. The powers of each of the three branches of the federal government are carefully limited and defined. See: Congress’ enumerated powers, the President’s enumerated powers, and the Judicial Branch’s enumerated powers. Our Constitution does not delegate general legislative powers over the Country at large to Congress! Ours is a Constitution of enumerated powers only. And nothing – nothing – in the Constitution authorizes the federal government to control the provision – or denial – of medical care to The People. Thus, obamacare is altogether unconstitutional as outside the scope of the legislative powers delegated to Congress by Our Constitution.
Folks! Do not believe what you hear people saying about Our Constitution on TV or the Radio. Most of them don’t know what they are talking about, or they are lying. Only rarely does anyone get it right as O’Reilly did. So you must check things out for yourself. And always demand Proof! PH
1 For a more definitive explanation of the genuine meaning of the interstate commerce clause, and more irrefutable proof from primary sources, see: Does The Interstate Commerce Clause Authorize Congress To Force Us To Buy Health Insurance? Progressives! Read it and rebut it, if you can. PH
April 17, 2012
Defending Our Constitution From Its Domestic Enemies.
By Publius Huldah
It has been said, even by some law professors, that Congress can force Americans to buy health insurance because …well, everybody knows that the “government” can force us to buy auto insurance.
Read on, and I will show you how such statements constitute a serious assault on “federalism” and our constitutional Republic. But first, let us hear from some of these professors.
Michael Seidman, professor of constitutional law at Georgetown University Law Center, appeared on November 14, 2009 on Fox and Friends Saturday. He said, in support of his affirmative answer to the question, “Can Congress force Americans to buy health insurance?”,
…the government, ah you know, the government requires us to buy car insurance, it requires us to to engage in to buy the social security to buy uh social security insurance essentially… [transcribed to the best of my ability]
Nan Hunter, law professor at Georgetown’s O’Neill Institute for Global and National Health Law, gave the Introduction at a debate on October 26, 2009 between Professor Seidman and constitutional attorney David Rivkin. The topic was “Are health care purchase mandates constitutional?”. After describing Seidman as “one of the ah leading constitutional law scholars in the nation”, Hunter said,
…it is clear that government can mandate the purchase of private insurance before one engages in certain activities, for example, driving. It can mandate the purchase of automobile insurance as a quid pro quo for ah legally being able to drive. However, individuals can elect not to drive and therefore obviously not have to purchase auto insurance…
Timothy Stoltzfuz Jost, law professor at Washington and Lee University, participated in Politico’s September 18, 2009 forum on “Healthcare: Is ‘mandatory insurance’ unconstitutional?”. Jost wrote that while the “claim” that “health reform” is unconstitutional is a “talking point” “pushed” by “Republicans”, “former Bush officials” such as David Rivkin, Fox News Commentator Andrew Napolitano, town hall attendees, and tea party demonstrators, “[i]t is not…an argument taken seriously by constitutional scholars.” Jost went on to say,
The only plausible question is whether Congress has the authority under the Interstate Commerce Clause to require individuals to purchase health insurance. The primary difficulty here is that it is hard to think of a precedent where Congress (or for that matter the states, other than Massachusetts with its recent health care reforms) have required residents to purchase a particular product or service. Auto liability insurance mandates come to mind, but these are only imposed on persons who use the public roads.
Thomas J. Whalen, social science professor at Boston University, wrote on the Politico forum:
…the commerce clause seems sufficiently expansive enough [sic] to include mandatory health insurance for all Americans. After all, for some time now we’ve all been required to have auto insurance to operate our motor vehicles. And last time I checked, the Republic is still standing.
Apparently, Whalen is not a lawyer, though his biography informs us that he is an “expert”. And Jost said i t was “…correct to invite…political experts to respond, because this is not a serious legal issue..”.
So! While social science professors who agree with Jost are qualified to opine on this constitutional issue; “Republicans”, “former Bush officials” such as constitutional attorney David Rivkin, Judge Andrew Napolitano, town hall attendees and tea party demonstrators are most emphatically not. Their position, you see, is not “serious”.
By their invocation of the auto insurance analogy, such “expert” and “scholarly” professors as Seidman, Hunter, Jost and Whalen show that they have no understanding of “federalism”; or they think you don’t, and they are trying to take advantage of your supposed ignorance. So, is their metaphorical place under the dunce’s cap, or is it Antenora in the Ninth Circle?
What is “federalism”? “Federal” refers to the form of our government: An alliance of Sovereign States associated together in a “federation” with a national government to which is delegated supremacy over the States in specifically defined areas.
James Madison, Father of the U.S. Constitution, illustrated “federalism” in Federalist No. 45 (9th para):
The powers delegated by the proposed Constitution to thefederal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people….[italics added]
Madison explained “federalism” again in Federalist No.39 (3rd para from end):
…the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignity over all other objects…[italics added]
And in Federalist No. 14 (8th para), Madison said:
… the general [federal] government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects...[italics added]
This, Folks, is “federalism”: The delegation by The People and their States of a few enumerated powers to the “federal” government; and THE RETENTION OF THE GENERAL POWERS – those which “concern the lives, liberties and properties of the people” – BY THE SOVEREIGN PEOPLE AND THEIR STATES.
Article I, Sec. 8, U.S. Constitution, shows that the enumerated powers delegated to the “federal” government are confined to war, a few aspects of commerce (strictly defined), immigration, delivery of our mail, and the establishment of a uniform commercial system (bankruptcy, a monetary system, punishment of counterfeiting, a standard of weights and measures, and issuance of patents and copyrights). That’s basically it!
As Madison said, it is the States which retain an “inviolable sovereignity” over “the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people”. It is THE STATES which have required drivers to purchase auto insurance! The federal government has no authority under The Constitution to require us to buy any kind of insurance.
By saying that Congress can force you to buy health insurance because “the government” can require you to buy auto insurance, these “scholarly” and “expert” professors are obliterating “federalism”. Do they not understand what they are doing? Or, are they trying to deceive you?
The concept of “federalism” is so easy to grasp that surely these professors can understand it. After all, some non-lawyers among this writer’s contacts – even those who attend tea parties and town hall meetings – seem to understand it quite well. PH
December 10, 2009
DOES THE “GENERAL WELFARE CLAUSE” OF THE U.S CONSTITUTION AUTHORIZE CONGRESS TO FORCE US TO BUY HEALTH INSURANCE?
Defending The Constitution From It’s Domestic Enemies.
By Publius Huldah
CNSNews.com recently posted an article, “Hoyer Says Constitution’s ‘General Welfare’ Clause Empowers Congress to Order Americans to Buy Health Insurance”. In the article, Steny Hoyer (Democrat House Majority Leader) said Congress has “broad authority” to force Americans to purchase health insurance, so long as it was trying to promote “the general welfare”.
Oh my! Does Steny Hoyer not know that his view was thoroughly examined and soundly rejected by our Framers?
The Truth is that Congress is NOT authorized to pass laws just because a majority in Congress say the laws promote the “general welfare”! As shown below, James Madison, Father of The Constitution, and Alexander Hamilton, author of most of The Federalist Papers, expressly said The Constitution does not give a general grant of legislative authority to Congress!
Rather, ours is a Constitution of enumerated powers only. If a power isn’t specifically granted to Congress in The Constitution, Congress doesn’t have the power. It really is that easy – and our beloved Madison and Hamilton show us.
1. Let us look at the so-called “general welfare” clause: Article I, Sec.8, clause 1, U.S. Constitution, says:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States…
Immediately thereafter, follows an enumeration of some 15 specific powers which are delegated to Congress. If you will spend 20 minutes carefully reading through the entire Constitution and highlighting the powers delegated to Congress, you will find (depending upon how you count) that only some 21 specific powers were delegated to Congress for the Country at large. This is what is meant when it is said that ours is a Constitution of enumerated powers!
2. But Steny Hoyer and his gang claim that the “general welfare” clause is a blank check which gives them power to pass any law they want which they say promotes the “general welfare”. Further, they claim the power to force their view of such on us.
3. Let us analyze this. Since words change meaning throughout time [200 years ago, "nice" meant "precise"], we must learn what the word, “welfare”, meant when the Constitution was ratified. “Welfare”, as used in Art. 1, Sec. 8, clause 1, meant:
Exemption from any unusual evil or calamity; the enjoyment of peace and prosperity, or the ordinary blessings of society and civil government (Webster’s American Dictionary of the English Language, 1828).
But The American Heritage Dictionary of the English Language (1969), gave a new meaning: “Public relief – on welfare. Dependent on public relief”.
Do you see how our Constitution is perverted when 20th century meanings are substituted for original meanings? Or when the words of The Constitution are treated as if they have no meaning at all except that which the statists assign to them?
4. Both Madison and Hamilton squarely addressed and expressly rejected the notion that the “general welfare” clause constitutes a general grant of legislative power to Congress. In Federalist No. 41 (last 4 paras), Madison denounced as an “absurd” “misconstruction” the notion that
…the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare….
In refuting this “misconstruction”, Madison pointed out that the first paragraph of Art. I, Sec. 8 employs “general terms” which are “immediately” followed by the “enumeration of particular powers” which “explain and qualify”, by a “recital of particulars”, the general terms. Madison also said:
…Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity…
Madison was emphatic: He said it was “error” to focus on the “general expressions” and disregard “the specifications which ascertain and limit their import”; and to argue that the general expression provides “an unlimited power” to provide for “the common defense and general welfare”, is “an absurdity”.
In Federalist No. 83 (7th para), Hamilton said:
…The plan of the [constitutional] convention declares that the power of Congress…shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended… [boldface added]
5. So! It is clear from Madison and Hamilton that The Constitution does not bestow any general or unlimited grant of legislative power to Congress!
And what else did Madison and Hamilton say about the enumerated powers of the federal government? In Federalist No. 45 (9th para), Madison said:
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people….[boldface added]
Madison said it again in Federalist No. 39 (3rd para from end):
…the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignity over all other objects….” [boldface added]
In Federalist No. 14 (8th para), Madison said:
… the general [federal] government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects...[boldface added]
In Federalist No. 27 (last para), Hamilton said:
…It merits particular attention in this place, that the laws of the Confederacy [the federal government], as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land…Thus the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS…[caps in original]
6. Now, let’s look at the 10th 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.
Now, we can understand the true meaning of the “general welfare” clause: OUR FOUNDERS UNDERSTOOD that the “general Welfare”, i.e., the enjoyment of peace and prosperity, and the enjoyment of the ordinary blessings of society and civil government, was possible only with a civil government which was strictly limited and restricted in what it was given power to do!
7. So! How did we get to the point where the federal government claims the power to regulate every aspect of our lives, including forcing us to buy health insurance?
Consider Prohibition: During 1919, everyone understood that the Constitution did not give Congress authority to simply “pass a law” banning alcoholic beverages! So the Constitution was amended to prohibit alcoholic beverages, and to authorize Congress to make laws to enforce the prohibition (18th Amendment).
But with Franklin D. Roosevelt (FDR), the federal government abandoned our Constitution: FDR proposed “New Deal” schemes; Congress passed them. At first, the Supreme Court opined (generally 5 to 4) that “New Deal” programs were unconstitutional as outside the powers granted to Congress. But when FDR threatened to “pack the court” by adding judges who would do his bidding, one judge flipped to the liberal side, and the Court started approving New Deal programs (generally 5 to 4).
Since then, law schools don’t teach the Constitution. Instead, they teach Supreme Court opinions which purport to explain why Congress has the power to regulate anything it pleases. The law schools thus produced generations of constitutionally illiterate lawyers and judges who have been wrongly taught that the “general welfare” clause, along with the “interstate commerce” and the “necessary and proper” clauses, permit Congress to do whatever it wants!
Roger Pilon of the Cato Institute nailed it in his recent post on Politico.com:
Is it unconstitutional for Congress to mandate that individuals buy health insurance or be taxed if they don’t? Absolutely – if we lived under the Constitution. But we don’t. Today we live under something called “constitutional law” – an accumulation of 220 years of Supreme Court opinions – and that “law” reflects the Constitution only occasionally. [boldface added]
Now you see how the statists justify the totalitarian dictatorship they are attempting to foist upon the American People. The statists and the brainwashed products of our law schools go by U.S. Supreme Court opinions which reject The Constitution!
But We the People can reverse this by insisting that the people in the federal government obey The Constitution, as explained by The Federalist Papers.
8. And is the Supreme Court actually the ultimate authority on the meaning of our Constitution?
NO! Hamilton said the people are “the natural guardians of the Constitution”, and he called upon us to become “enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority.” (Federalist No.16, next to last para).
Hamilton also told us in Federalist No. 33, 5th para:
If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify. [boldface added]
Folks! Your duty is clear: Study The Declaration of Independence, The Constitution, and The Federalist Papers. Live up to the expectations of Hamilton and Madison; and throw off the chains which the usurpers are forging for you and Our Posterity.
October 27, 2009; revised Jan. 26, 2012
IS THERE A “RIGHT” TO MEDICAL CARE?
By Publius Huldah
What is the Source of “Rights”?
Do you have a “right” to medical care? Is medical care free? Does it grow on trees? If you don’t pay for your own medical care, do you have a “right” to get medical care at other peoples’ expense? Do you have a “right” to have other people forced to pay for your medical care?
Let us walk through this important question to the clear answer.
What are “rights”? Where do rights come from? Are rights unalienable gifts from God? Are rights inherent to our nature as humans? Is the Bill of Rights (the first 10 Amendments to the U.S. Constitution) or the 14th Amendment the source of our rights? Or, are “rights” entitlements to stuff which other people are forced to pay for?
Let us examine these four views on the nature of “rights”.
1. Our Declaration of Independence says Rights are unalienable and come from God:
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…
Because our Declaration of Independence, one of our three founding documents, refers to The Creator God as The Grantor of Rights, let us look to The Bible to see what those rights are. The Bible reveals many rights, such as the right to inherit, earn, and keep property; the right of self-defense; the right to work in one’s chosen trade or profession; the right and duty to demand that the “king” adhere to the Covenant of civil government; the right to travel; the right to speak; the right to marry and raise children free from interference; the right to worship God; and so forth. The distinguishing characteristic of all these God-given rights is that each and every one of them may be held and enjoyed at NO expense or loss to any other person.
2. The Philosopher Ayn Rand saw rights as inherent to the nature of man; but thought God had nothing to with it. John Galt said in Atlas Shrugged:
The source of man’s rights is not divine law or congressional law, but the law of identity. A is A—and Man is Man. Rights are conditions of existence required by man’s nature for his proper survival. If man is to live on earth, it is right for him to use his mind, it is right to act on his own free judgment, it is right to work for his values and to keep the product of his work. If life on earth is his purpose, he has a right to live as a rational being: nature forbids him the irrational. Any group, any gang, any nation that attempts to negate man’s rights, is wrong, which means: is evil, which means: is anti-life.
Thus, Ayn Rand also saw “rights” as attributes which may be held and enjoyed at no expense or loss to any other person.
3. Others say our rights come from the Bill of Rights, or from the 14th Amendment. But these are grievous and pernicious errors.
For one thing, Art. III, Sec. 2, clause 1, says, “The judicial Power shall extend to all Cases…arising under this Constitution…”. This means that if a “right” is seen to “arise under the Constitution”, then federal judges have judicial power over it! Do you see that when judges have power over YOUR rights, that your rights are no longer unalienable? You now hold them only at the pleasure of five judges on the US Supreme Court!
Also, to say that the Bill of Rights “confers” our rights; or to discuss “the full scope” of any of the First Ten Amendments, constitutes a restriction on, and reduction of, the rights given by God. To say that the Bill of Rights is the source of our rights, diminishes them from their hallowed status as unalienable gifts from God, and transforms them into revocable privileges which we hold, or not, according to whether they are recognized in a document written by men; and according to the interpretations of judges!
Furthermore, Alexander Hamilton opposed adding a Bill of Rights to the Constitution. He said they were unnecessary and dangerous because they contain exceptions to powers which are not granted. They thus afford – to those disposed to usurp – a pretext to regulate those rights (The Federalist No. 84, 9th Para). Well, our Hamilton was a prophet as well as a genius in political philosophy, for it has been demonstrated elsewhere how judges on the U.S. Supreme Court exploited the First Amendment’s promise of “free speech” and “free exercise of religion” to actually ban religious speech in the public square!
Equally pernicious is this: Judges on that same Court have asserted that the source of our “rights” is the Constitution, as such “rights” are defined and discovered, from time to time, BY THEM! It has been explained elsewhere how judges on that Court evaded the constitutional limitations on their power to hear cases [the cases they may hear are enumerated at Art. III, Sec. 2, clause 1] by fabricating individual “constitutional rights”. In this manner, a handful of judges “discovered” “constitutional privacy rights” to engage in practices (abortion and sodomy) which had been outlawed by the States!
When we substitute the Constitution for God as the source of our rights, the entire concept of “rights” becomes perverted. Literally.
Furthermore, The Constitution is about the Powers which We the People delegated to the three Branches of the Federal Government. It is NOT about Our Rights, which come from God, are unalienable, & predate the Constitution! We created the Constitution & the federal government! Why would the creator of The Constitution (that’s us) grant to our “creature” (the federal courts), the power to determine, “discover” and define OUR Rights?
4. The statists and their dupes assert that rights come from “the government”. The statists are not concerned with protecting Life, Liberty and the Pursuit of Happiness! They love death: abortion, infanticide!, assisted suicide, euthanasia, and government “death panels” who decide who gets medical care and who does not – who lives and who dies. They hate private property. They hate Liberty (as it has traditionally been defined in western civilization). Productive men exist, not to pursue their own Happiness or to serve God; but to be plundered by civil government.
To statists, a “right” is a claim for stuff produced by, or paid for, by somebody else: The “right” to medical care, the “right” to a public school education; the “right” to housing; the “right” to food stamps; etc. But it is a contradiction in terms – it is a perversion – to speak of “rights” to stuff that is produced by, or paid for, by others! To hold that people who produce exist to be plundered by civil government for the ostensible benefit of others is slavery. Just as no one has the right to own another human being; so no one has the right to own the fruits of another man’s labors.
Folks! We need to face Reality and acknowledge that statists are not people with “good intentions”.
As stated in Our Declaration of Independence, we must insist that our rights come from God, are unalienable, and pre-date and pre-exist Our Constitution. PH
October 11, 2009; revised July 24, 2010.
By Publius Huldah
Bill O’Reilly of Fox News recently asked attorneys Megyn Kelly and Lis Wiehl whether Congress has authority under The Constitution to require us to buy health insurance. Wiehl said Congress has the power under the “interstate commerce” clause; but Kelly said it would take “days and weeks of research” to answer the question.
Let us see if we can walk through this question to the answer in five minutes. Article I, §8, clause 3, U.S. Constitution, says,
The Congress shall have Power…To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
What does “regulate Commerce among the several States” mean?
First: What is “commerce”? Because words change meaning throughout time ["gay" once meant "jovial & lighthearted"], we must consult an old dictionary. Webster’s American Dictionary (1828) defines commerce as:
an interchange or mutual change of goods, wares, productions, or property of any kind, between nations or individuals… by barter, or by purchase and sale; trade; traffick… inland commerce…is the trade in the exchange of commodities between citizens of the same nation or state.
So! “Commerce” is the buying and selling of goods.
Now, we must find out what “regulate Commerce among the several States” means. Two readily available authorities tell us: The Federalist Papers, written during 1787-1788 by Alexander Hamilton, James Madison, and John Jay, in order to explain the Constitution to the People and induce them to ratify it; and The Records of the Federal Convention of 1787 kept by James Madison.
These authorities prove that the purposes of the “interstate commerce” clause are (1) to prohibit the States from imposing tolls and tariffs on articles of import and export – goods & commodities – merchandize – as they are transported through the States for purposes of buying and selling; and (2) to permit the federal government to impose duties on imports and exports, both inland and abroad.
In Federalist No. 22 (4th Para), Hamilton said:
The interfering…regulations of some States…have… given just cause of…complaint to others, and…if not restrained by a national control, would be multiplied… till they became… serious sources of animosity and… impediments to the intercourse between the different parts of the Confederacy. “The commerce of the German empire…is in continual trammels from the multiplicity of…duties which the several princes and states exact upon the merchandises passing through their territories, by means of which the…navigable rivers [of]…Germany…are rendered almost useless.” Though the…people of this country might never permit this…to be… applicable to us, yet we may…expect, from the…conflicts of State regulations, that the citizens of each would…come to be…treated by the others in no better light…
In Federalist No. 42 (9th Para), Madison said
…A very material object of this power [to regulate commerce] 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…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…
Madison’s Records of the Federal Convention of 1787 show:
…Mr. Madison. 1. the power of taxing exports is proper in itself, and as the States cannot with propriety exercise it separately, it ought to be vested in them collectively…3. it would be unjust to the States whose produce was exported by their neighbours, to leave it subject to be taxed by the latter. This was a grievance which had already filled [New Hampshire, Connecticut, New Jersey, Delaware, and N. Carolina] with loud complaints, as it related to imports, and they would be equally authorized by taxes by the States on exports….
See also Tuesday, August 21 for Mr. Ellsworth’s comment that the power of regulating trade between the States will protect them against each other, and Tuesday, August 28 for Gouverneur Morris’ comment that the power to regulate trade between the States was necessary to prevent the Atlantic States from taxing the Western States.
So! The evidence is ample, clear and unambiguous! Furthermore, five clauses in the Constitution: Art. I, §8, cl.1; Art. I, § 9, cl.5; Art. I, § 9, cl.6; Art. I, §10, cl.2; & Art. I, §10, cl.3, give express effect to these two purposes of the “interstate commerce” clause.
The clause is not a blank check for Congress to fill out any way it wants! In Federalist No. 45 (last Para), Madison said the regulation of commerce was a power not held under the Articles of Confederation, but was an addition “from which no apprehensions are entertained”. Ours is a Constitution of enumerated powers only!
But today, the clause is cited as authority for federal takeover of medical care! This redefinition of the clause resulted from a radical transformation in judicial philosophy. Two cases illustrate this transformation:
In Bailey v. Drexel Furniture Co. (1922), the Supreme Court reviewed a federal excise tax on profits from sales of child-made products. The Court said “the so-called tax is a penalty to coerce people of a State to act as Congress wishes them to act in respect of a matter completely the business of the state government under the Federal Constitution” (p 39), and:
…Grant the validity of this law, and all that Congress would need to do, hereafter, in seeking to take over to its control any one of the great number of subjects of public interest, jurisdiction of which the States have never parted with, and which are reserved to them by the Tenth Amendment, would be to enact a detailed measure of complete regulation of the subject and enforce it by a so-called tax upon departures from it. …such…would…break down all constitutional limitation of the powers of Congress and completely wipe out the sovereignty of the States. (p 38)
But in Wickard v. Filburn (1942), the Court said the “commerce clause” extends to local intrastate activities which “affect” interstate commerce, even if the activities aren’t “commerce”! The Court also asserted that Congress has power to regulate prices of commodities and the practices which affect such prices!
Thus, if you have tomato plants in your back yard for use solely in your own kitchen, you are “affecting” “interstate commerce” and are subject to regulation by Congress. The court’s reasoning is this: If you weren’t growing tomatoes in your back yard, you’d be buying them on the market. If you were buying them on the market, some of what you bought might come from another State. So! By not buying them on the market, you are “affecting” “interstate commerce” because you didn’t buy something you otherwise would have bought. See? And we have to stand up when these people walk into a room!
This is how the concept of a Constitution with an objective meaning easily learned from an old American dictionary, The Federalist Papers, & Madison’s Records of the Federal Convention of 1787, was taken away from us; and replaced with the judges’ claim that the Constitution is an evolutionary document which means whatever they say it means.
The reason it would take Megyn Kelly “days and weeks of research” to answer the question – instead of the five minutes it took us, is because she would search Supreme Court opinions to analyze the evolution of their “commerce clause jurisprudence” to try to figure out how they would answer the question.
They have taken our Constitution away from us. Let us demand its Restoration.