Strengthening Constitutional Self-Government

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Health Care

Do we have a constitution?

The Speaker of the House takes the living constitution idea to its logical limit: "Since virtually every aspect of the heath care system has an effect on interstate commerce, the power of Congress to regulate health care is essentially unlimited."

If we follow a long line of cases dating back to the New Deal era, I fear that she is not entirely wrong.  In effect, the Constitution now gives the U.S. government the right to regulate all commerce, and not merely interestate commerce, as the government has defined non-interstate commerce out of existence

On the other hand, just because our national government no longer is restrained by any limits with regard to what problems it may tackle, that does not mean there are no limits to the means it might use.  I am fairly certain the Speaker would object to racial discrimination in the provision of health care. In that sense the right of the U.S. government to regulate health care is limited.  That leaves the constitutionality of an individual mandate to buy health insurance an open question, at least in principle.  Is such a mandate a constitutional means to what is now, for all practical constitutional purposes, a legal end?

(H/T: Mary Katherine Ham)

Categories > Health Care

Discussions - 11 Comments

Just buy ammo.

I mean, hunting season is here, right?

Ask santa for a gift from bushmaster or rock river.

I would stick with .223, creedmoor is new and I don't think its that easy to come by. If you stock up though it would be fine. I was actually interested in that exact rifle from your length just in .223.
On topic, I think we have a document called a constitution; but it no longer means anything to those in power.

I am fairly certain the Speaker would object to racial discrimination in the provision of health care.

Why do you believe that, given that racial discrimination in university enrollment is widely practiced in the Speaker's home state? In one of the health care boluses I found a sizeable cut in Medicare spending, and language explicitly requring that all recent immigrants, no matter how new, be eligible for Medicaid. Cutting back on health care for old white people while increasing it to newly arrived non-white people looks rather like not-so-subtle racial discrimination in health care. I doubt the Speaker knows, or would care, about such a thing if she did know. She's got her private doctors. The rest of us can eat cake.

Nancy Pelosi thinks there are no limits on the power of Congress. She's wrong, because there are indeed methods of limiting Congress.

One method, in particular, is called "a revolution."

This country has already experienced one revolutionary war; what makes Pelosi think we can't have another?

FDR first tried making Social Security as an insurance program, but when the courts said the government couldn't force people to buy insurance he just called it a tax and it worked.

Given that the federal Constitution is silent about public healthcare, the 10th A. automatically reserves government power to regulate healthcare to the states, not the Oval Office and Congress.

In fact, Constitution-impaired Pelosi and Reid evidently do not know that the USSC has already officially decided that Congress has no business sticking its big nose into the medical practice as evidenced by the following.

“Direct control of medical practice in the states is obviously beyond the power of Congress.” –Linder v. United States, 1925. http://supreme.justia.com/us/268/5/case.html

What Pelosi is doing is unthinkingly walking in socialist FDR's perversions of the general welfare and commerce clauses (Article I, Section 8, Clauses 1 and 3 respectively). More specifically, FDR’s eight pro-big federal government, outcome-driven justices wrongly ignored state sovereignty-related constitutional statutes like Article V and the 10th A. in order to justify broadening the limits of Congress's power with perversions of the general welfare and commerce clauses. Constitutionaly flunky Pelosi has evidently been indoctrinated with the Court’s perversions of these clauses as evidenced by her misguided crusade to push Obamacare.

The bottom line is that the Congressmen who vote yes on Obamacare legislation will make a handy list of lawmakers who need to be charged with treason for blatantly violating their oaths to defend the Constitution, wrongly ignoring state sovereignty in particular.

With a mischievous, though serious eye, the following proposals are humbly submitted:

1. The ability of the Court to interpret Congressional acts as Constitutional or not is only inferentially given in Article III, via the clause "The judicial power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States and Treaties made, or which shall be made, under their Authority." Fair enough, I will not waste all our time with an argument that there was never a reasonable basis for the Courts to think they could interpret Congressional acts, as it is there in black and white.

But the clause that follows the above a paragraph later is also relevant--"In all the other cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." This language would seem to be very clear and not open to debate--the Supreme Court considers things only at the sufferance of Congress (such sufferance currently being defined in Article 28 of the USC), and if Congress ever wished to remove any or all such sufferance, it could do so and there would not be a *thing* the judiciary could do about it.

Now this is important, because it is thought that the ability of the Supreme Court to declare acts unConstitutional rests on Marbury v. Madison, and I, in my untutored legal state, wish to nevertheless say it does not. It rests on Title 28 or other part of the USC, with Title 28 being legitimate via Article III, and, as an aside, I will say that I assume it is explicitly in there somewhere, not being a lawyer nor wishing to take time to read the language, for it really does not matter. Now, as an interesting thought, if such power is *not* expressly granted, then the entire history of Supreme Court jurisprudence overturning Congressional acts *is* illegitimate, resting more on the unwillingness of the powers-that-be to challenge the Court for political reasons of the times, and less on Madisonian grounds.

For example, Jefferson simply may not have desired to expend the political capitol that would have been necessary to fight Marshall on Marbury v. Madison, since it would have quickly turned into a Federalist v. Republican fight and, after all, he would have been fighting for a obscure point, having won the practical issue of not having to deliver a commission to Mr. Marbury, and the law ruled unconstitutional had not been a Republican one anyway (if my memory serves). Thus, I say Marbury v. Madison did not establish the *right* of the Court to overturn Congressional acts, instead it merely established that the Court, every so often, could get away with such because there would not be the political strength to amend the laws regulating the judiciary.

Therefore, I argue that the rights of the Courts truly derive from the Regulations clause and Title 28, not precedent, for "precedent" is not given any Constitutional basis, nor is it mentioned anywhere in the 1787 document. What this extended discussion really means is that the role of the Court can be changed anytime political will is made manifest to change Title 28, and thus the sainted checks and balance function of the Supreme Court is essentially legislative in origin, not Constitutional.

2. And so, for my proposal, I simply submit that Title 28 be changed so that if the Supreme Court is ruling a congressional act unconstitutional, it must do so by a two-thirds majority--which, incidentally, is the same majority as that needed by Congress to override a veto or send a Constitutional Amendment to the states. One could also argue that 3/4 (being the level of ratification needed by the states for Constitutional amendments) would be an acceptable number.

3. Equally mischievous, I say that perhaps Supreme Court decisions need to be sent to the people or the states for ratifications, since they appear to be more in the form of Constitutional Amendments than laws.

4. But perhaps I would settle for merely allowing--as is done in many states--allowing the people to hold referenda or plebiscites on selected Court rulings, with a 3/4 state majority required in support of the Court's decision if the Court is essentially trying to change the Constitution, 3/4 being the number of states required to pass amendments.

And, thus, hopefully having thrown enough bombs and started enough fires for the day, I humbly retire and allow you to consider what I have written.

Apparently the muse of fire is still with me. I was thinking of "precedent', and have no problem with it--for the use of the judiciary. The judiciary has got to have *some* guide for how to rule, or else it would whiplash the entire nation with its constant uncertainty.

However, for the rest of us, precedent should not be a god, but instead it should serve merely as a guide that on whatever the exact issue may be, we should not expect too much hope from the judiciary if precedent be against us. But that *does not* mean *we* have to bow down before precedent and give up for all time certain legislative desires, absent a Constitutional amendment. To disagree with precedent is not to sin before Creation.

So, with the same creativity as those who have expanded the judiciary's role have done, I simply say that if Congress merely amends Title 28 to say "interstate commerce, for the purposes of cases arising under Article III, means X" then it will mean X. Period. Or else "under such Regulations as the Congress shall make" means nothing, and the judiciary has usurped sovereignty for itself., to preserve power for itself. No. The judiciary *must* follow whatever restrictions are in Title 28, as that is the only way it has to claim Article III legitimacy, which is the only claim to legitimacy it can make.

Thus for Roe v. Wade--it exists only as long as Title 28 says it does, for the Title can clearly spell out that the Constitution is to be interpreted as to contain no penumbras. Thus, Roe v. Wade can be effectively overturned anytime a majority of Congress wishes to do so.

I'm fully aware of what I have just awoke. I don't care. For quite simply, the Courts were not originally envisaged to do what they are doing today. That's why Article III is so brief. The judiciary was not intended to be a main check and balance on the other two branches--or at least that is my argument. For if it had been so intended, more time and effort would have been spent on it, with a discussion on abuses of power to match those spent on the Legislature and Executive branches.

At some point, plain words on a document have got to mean what they mean, and so, if people want to put too much weight on an infirm foundation, simply because they want results and do not care how they get them, then they should not be surprised if the entire structure comes falling down around them.

But I will offer this--I see value in the judiciary as a check. But not the way it is done today, and not with the legal culture it often has today. Thus, I'd gladly like to debate a proper form of Constitutional role for the judiciary, via the amendment process.

But absent another system, and having no great love for the Court as it occasionally acts, I hold to my original brief--Congress may make Regulations and Exceptions as it sees fit for the Courts; to do so it only requires whatever majorities the individual Houses of Congress require by their individual rules (50% for the House, effectively 60% for the Senate and a lack of a Presidential veto); and that thus the Congress can overturn any Supreme Court decision it wants any time it wants (assuming that President does not veto) *merely* by amending Title 28. There is no Constitutional role for the Court to check Congress--it is a creature operating at the whim of Congress. I understand the angst that could be generated by this argument, but it does not matter. The argument is there, it's logical, yes, it's a can of worms--BUT IT IS INCONTROVERTIBLE, unless we choose to say that words plainly written down no longer mean what they clearly mean.

Thus, the Constitution is not what the Supreme Court says it is, but what the people say it is, through their representatives, in Congress assembled, and its ability to write Exceptions and Regulations for the Supreme Court, as laid out in Article III, the only source of legitimacy and power for the judiciary.

And with this, another thesis nailed to the door, I retire yet again.

I took my first business loans when I was 20 and this aided my family very much. But, I need the college loan over again.

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