Why Congress May Lawfully Require Citizens to Buy Guns & Ammunition, But Not To Submit To Obamacare.

By Publius Huldah.

Harvard Law School was embarrassed recently when one of its graduates, the putative President of the United States, demonstrated that he was unaware that the supreme Court has constitutional authority to declare an act of Congress unconstitutional.¹

And after reading a recent paper by Harvard law professor Einer Elhauge, one wonders whether the academic standards (or is it the moral standards?) of that once great school have collapsed.

Professor Elhauge says in “If Health Insurance Mandates Are Unconstitutional, Why Did the Founding Fathers Back Them?” (The New Republic, April 13, 2012), that Congress may force us to buy health insurance   because in 1792, our Framers required all male citizens to buy guns; and in 1798 required ship owners using U.S. ports (dock-Yards) to pay a fee to the federal government in order to fund hospitals for sick or disabled seamen at the U.S. ports.

Oh! What tangled webs are woven when law professors write about Our Constitution!

I have already proved that Art. I, Sec. 8, next to last clause (which grants to Congress “exclusive Legislation in all Cases whatsoever” over dock-Yards and the other federal enclaves) is what authorizes Congress to assess the fee from ship owners who use the federal dock-Yards. See: Merchant Seamen in 1798, Health Care on Federal Enclaves, and Really Silly Journalists.

Now I will show you where the Constitution grants authority to Congress to require adult citizens to get armed!

The Constitution Authorizes Congress To Require Citizens to Buy Guns and Ammunition.

In 1792, Congress passed “An Act more effectually to provide for the National Defense by establishing an Uniform Militia throughout the United States”.² This Act required all able-bodied male citizens (except for federal officers and employees) between the ages of 18 and under 45 to enroll in their State Militia, get a gun and ammunition, and train.

Does Congress have authority in the Constitution to require this?  Yes!  Article I, Sec. 8, clause 16 says Congress has the Power:

“To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;” [boldface mine]

That is what authorizes Congress to require adult male citizens to buy guns and ammunition.

As Section 1 of the Militia Act of 1792 reflects, the “Militia” is the citizenry!  Our Framers thought it such a fine idea that The People be armed, that they required it by law!  See, e.g., the second half of Federalist Paper No. 46 where James Madison, Father of Our Constitution, speaks of how wonderful it is that the American People are armed – and why they need to be. ³

So!  In the case of Congress’ requiring adult citizens to buy guns and ammunition, Congress has specific authority under Art. I, Sec. 8, cl.16.

In the case of Congress’ requiring ship owners who use the federal dock-Yards to pay the fees to fund the marine hospitals at the dock-Yards, Congress is granted by Art. I, Sec.8, next to last clause, a general legislative power over the federal enclaves, such as dock-Yards.⁴

But for the country at large, Congress has no broad grant of legislative powers. There, Congress’ powers are few, limited, and strictly defined.  See: Congress’ Enumerated Powers.

Now, let us look at obamacare.

What Clause in The Constitution Authorizes Congress to Force Us into Obamacare?

Nothing! Over the Country at large (as opposed to the federal enclaves), Congress has only enumerated powers.  These enumerated powers are listed in Art. I, Sec. 8, clauses 1-16 and in the Amendments addressing civil and voting rights. No enumerated power authorizes the federal government to force us into obamacare.

So, Professor Elhauge introduces a nasty bit of poison.  He says:

“Nevermind that nothing in the text or history of the Constitution’s Commerce Clause indicates that Congress cannot mandate commercial purchases.”

Do you see what he is doing? Surely he knows that obamacare is not authorized by any enumerated power.  So!  He asserts that nothing in the commerce clause says Congress can’t force us into obamacare.  He thus seeks to pervert Our Constitution from one of enumerated powers only, to an abomination which says the federal government can do whatever it pleases as long as the commerce clause doesn’t forbid it.

Furthermore, what he says is demonstrably false.  The Federalist Papers & Madison’s Journal of the Federal Convention show that the purpose of the interstate commerce clause is to prevent the States from imposing tolls & tariffs on articles of merchandize as they are transported through the States for purposes of buying and selling. For actual quotes from Our Framers and irrefutable Proof that this is the purpose of the interstate commerce clause, see: “Does the Interstate Commerce Clause Authorize Congress to Force Us to Buy Health Insurance?”.

Obamacare is unconstitutional as outside the scope of the legislative powers granted to Congress by Our Constitution. And it does much more than force us to buy medical insurance. Obamacare turns medical care over to the federal government to control. Bureaucrats in the Department of Health and Human Services will decide who gets medical treatment and what treatment they will get; and who will be denied medical treatment. If you think the federal government is doing a great job feeling up old ladies and little children at airports, wait until they are deciding whether you get medical care or “the painkiller”.

Folks! The Time has come that we must recognize that social security and Medicare are also unconstitutional as outside the scope of the legislative powers granted to Congress by Our Constitution. We must confess that it is wicked to seek to live at other peoples’ expense! And when a People renounce Personal Responsibility – as we did when we embraced social security & Medicare – the federal government takes control.

Social security and Medicare are fiscally bankrupt. Obamacare, which will prevent old people from getting medical care, is the progressives’ way of dealing with the unfunded liabilities in these programs: Kill off old people by preventing them from getting medical care!

The Piper will be paid. Shall we pay him by killing off old people?

Or, shall we return to Personal Responsibility and dismantle (in an orderly fashion) the wicked, unconstitutional, and fiscally unworkable social security and Medicare programs?

Endnotes:

¹ Our Framers gave us an elegant system of Checks & Balances: Each branch of the federal government has a “check” on the other two branches.  This is expressed primarily in the Oath of Office (Art. VI, cl. 3 & Art. II, Sec. 1, last clause) which requires each branch to obey the Constitution and not the other branches! The supreme Court’s check on Congress is to declare their Acts unconstitutional:   See (in addition to the Oath) Art. III, Sec. 2, cl. 1; Federalist No. 78 (8^th -15^th paras); and Marbury v. Madison (1803).

Congress’ check on the judicial branch is to impeach and remove federal judges who usurp power (Federalist No. 81, 8^th para).

² Here is the URL for the Militia Act of 1792:  Read it! And note how short it is.  http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=394

³ In “The Patriot”, Mel Gibson’s character commanded a South Carolina Militia – civilians who took up arms against the British. Everyone knew that “the Militia” was the armed citizenry – farmers, trappers, shopkeepers, clergy, etc.  It still is.

⁴ Attorney Hal Rounds provides fascinating additional information on this issue: “Ships will dump sick sailors wherever they may make landfall, and the locals have the burden of dealing with the victim. Their care then raises the legal right to compensation for their services, which the law of nations allows to be levied against the nation, not just the owners, of the ship.” For Mr. Round’s full comment see the Postscript of April 7, 2012 here. PH

May 3, 2012

A Progressive Perverts the Commerce Clause; but O’Reilly Gets it Right!

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 (9^th 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 (4^th 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 20^th 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 (9^th 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 (3^rd 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 (8^th 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

End Note:

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

Merchant Seamen In 1798, Health Care On Federal Enclaves, And Really Silly Journalists.

By Publius Huldah.

A little knowledge is a dangerous thing; and no one illustrates this Principle better than Forbes’ writer Rick Unger in his article, “Congress Passes Socialized Medicine and Mandates Health Insurance – In 1798”,  Washington Post writer Greg Sargent and Georgetown University history professor Adam Rothman.

In 1798, Congress passed An Act for the relief of sick and disabled Seamen which required the master of every American ship arriving from foreign ports to any port of the United States, and American ships engaged in the coastal trade using those ports, to pay a small fee to the federal government for every seaman employed on his ship. The funds so raised were used to care for sick and disabled seamen in the marine hospitals established in the ports of the United States.

So!  Unger cited this 1798 Act and chortled with glee that our Framers supported “socialized medicine”; and so the “political right-wing” should stop “pretending” that our Founding Fathers would oppose obamacare.

Greg Sargent chimed in to the same effect, and quoted history professor Adam Rothman for the idiotic propositions that

“…the post-revolutionary generation clearly thought that the national government had a role in subsidizing health care … that in itself is pretty remarkable and a strong refutation of the basic principles that some Tea Party types offer … This defies a lot of stereotypes about limited government in the early republic.”

But Unger’s, Sargent’s and Rothman’s statements are so transparently ignorant they can be disposed of in a few paragraphs:

Congress’ Three Categories of Legislative Powers

One:  Congress has only limited legislative powers over the Country at large. These legislative powers 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, and mail delivery. Various Amendments granted to Congress certain powers over civil rights. These enumerated powers are the only areas wherein the national government has lawful (constitutional) authority over The States and The People in The States.  In all other matters [except those listed at Art. I, Sec. 10] the States and The People retained supremacy, independence, and sovereignty.

Two:  Article I, Sec. 8, clause 17, U.S. Constitution, says:

“The Congress shall have Power To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislatures of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;”  [boldface mine]

“Exclusive Legislation in all Cases whatsoever” over “dock-Yards”. Do you see?  It is this clause which grants to Congress authority to establish marine hospitals on dock-Yards belonging to the United States.  Congress has a general legislative authority over the federal enclaves, such as dock-Yards. That legislative authority is limited only by the Bill of Rights.

In Federalist Paper No. 43 at 2., James Madison explains in three short paragraphs [read them!] why the federal government must have “complete authority” over the federal enclaves listed at Art. I, Sec. 8, cl.17.

Alexander Hamilton in Federalist No. 32 (2^nd para), comments also on the grant of “EXCLUSIVE LEGISLATION” over the federal enclaves [capitals are Hamilton’s] in “The last clause but one in the eighth section of the first article…”

Do you see?  That grant of “exclusive legislation” is restricted to the federal enclaves.

Three:  Article IV, Sec. 3, cl. 2,  grants to Congress the “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States…”  Madison shows in Federalist No. 43 at 5. that “the Territory” referred primarily to the Western Territory before it was formed into States.

That’s it, Folks!

So!  While Rick Unger crowed in his article,

“While I’m sure a number of readers are scratching their heads in the effort to find the distinction between the circumstances of 1798 and today, I think you’ll find it difficult.”

It’s not difficult at all!  All one has to do is read Art. I, Sec. 8, cl. 17, which permits Congress to make such a law for American ships using the dock-Yards belonging to the United States. That’s what “exclusive Legislation in all Cases whatsoever” means.  Do you see?

Congress has no such legislative authority for the Country at large. There, it is limited and   enumerated. PH

April 5, 2012

Postscript Added April 7, 2012:

Attorney Hal Rounds (Memphis, TN), gave me the following fascinating information:

“My GGrandfather was a U.S. Consul, his last post was in Nova Scotia. Among his records is a series of reports regarding how he arranged for the isolation, shelter, and nursing in Nova Scotia of an American sailor ill with smallpox. The ship left, after disembarking the now useless – and contagious – victim. This care necessitated local expenses and hiring. I do not know what, if any, of the cost was borne by the ship owner, and what portion was by the U.S. Government. (The sailor survived, and eventually was sent on his way.)

But the duties of a nation extend to some services to its citizens abroad. These are, of course, governed by treaties and customary traditions. So, a law requiring a ship operator to insure his crew fits in with the federal authority to regulate “commerce with foreign nations” and its jurisdiction over U.S. flag shipping outside, or traveling between, state jurisdictions. Because ships will dump sick sailors wherever they may make landfall, and the locals have the burden of dealing with the victim. Their care then raises the legal right to compensation for their services, which the law of nations allows to be levied against the nation, not just the owners, of the ship.

The requirement in 1798 addressed these concerns. It was not a requirement to subsidize health care for the citizenry at large, but to indemnify the federal government against claims that would arise in the course of the U.S. being a nation engaged in international trade, and, under the law of nations, responsible for the burdens its commerce threw upon foreigners; and to accommodate the demands the foreign vessels would dump on us.”

THANK YOU, Hal!  I showed how Congress had the authority to make the law; you explained why Congress needed to make the law, and provided additional constitutional authority for Congress to make the law.  PH

Refuting The Bad “Health Insurance – Auto Insurance” Analogy: A Lesson In Federalism.

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 (9^th para):

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….[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 (9^th 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, 5^th 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 Health Care a “Right”?

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, 9^th 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.

DOES THE “INTERSTATE COMMERCE” CLAUSE AUTHORIZE CONGRESS TO FORCE US TO BUY HEALTH INSURANCE?

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…

See also Federalist No. 44 (8th Para) and 56 (6th Para), for more to the same effect.

Madison’s Records of the Federal Convention of 1787 show:

Thursday, August 16th:

…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!

Charles Evans Hughes (Chief Justice,1930-1941) said the Constitution is “what the judges say it is.”

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.

October 7, 2009