I happened across an old text I wrote back in 1994 when Hillary Clinton was trying to socialize medical care in the United States. It’s long, but because Obama’s scheme is so close to Hillary’s, I thought I would post it here. In either case, the same Constitutional law applies.
-------------
The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interference in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more industrious and less informed part of the community. They have seen too that one legislative interference is but the first link of a long chain of repetitions, every subsequent interference being naturally produced by the effects of the preceding. -- James Madison. The Federalist Papers. No. 44
FEDERALIZING HEALTH CARE
An Assault on Our Fundamental Inalienable Rights
By Doug Fiedor
March 15, 1994
Synopsis
The following text contains 18 Supreme Court opinions, one Appellate Court opinion and one Circuit Court opinion. All opinions demonstrate that the Administration’s Health Care Security Act (i.e. federally controlled socialized medicine for American citizens) will not pass Federal Court muster.
This text is by no means all inclusive of the law; rather, it is a starting point for any future legal research on the subject.
Socialists and our liberal friends should be quite familiar with the text of many of the cited Court cases -- especially those pertaining to medical privacy. Because, since the liberals among us supported these Supreme Court opinions when the subject was the personal privacy of the medical treatment popularly known as abortion, they must also support our right to privacy and our right to choice in all medical care.
Conservatives will also notice that some Court opinions they have previously disliked are quoted extensively in this text. This is currently the law of the land, so let’s use it. Herein, conservatives should consider it as a bit of retribution to use what some think of as very liberal words in favor of defeating a very socialist-liberal type scheme for medical care.
In this day and age, it is amazing that people who cannot even subdivide a small amount of property into a profit -- even when one of them is a state Governor -- are actually believed by some when they say that they can properly direct the management of one-seventh of this nation’s economy.
---
Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety. -- Benjamin Franklin
Duties of Government
The most important function of government is the protection of the rights of the people. We the citizens must never let government forget that. We are now approaching an era where human dignity and liberty will require that We the People adamantly demand strict protection of all of our inalienable rights. But first we must properly understand just what those rights are. Exactly how and to what extent we expect government -- in this case the federal government -- to protect our rights and liberties is one of the major underlining elements of this discussion.
An outline of the Federal government’s authorized duties and responsibilities can be found in the United States Constitution. Our Constitution issues specific mandates to our Federal government, including mandates to:
· Protect our country against invasion
· Issue coin and control a stabilized money supply
· Set up and run a post office
· Secure our borders
· Protect the natural and inalienable rights of all citizens
· Guarantee a Republican form of government in the States
· Protect commerce between the states
· Regulate commerce with foreign countries
· Pass all laws necessary for proper government in the District of Columbia
Of these duties, only those pertaining to the military are performed adequately. Congress no longer controls our monetary system; it abdicated that to the Federal Reserve, a semi-private bank. Our borders are essentially open and free to any alien and/or drug-runner wishing to enter. And all public and private accounts label The District of Columbia as the worst-run major city in this country.
Still, many in the federal government seem to think they can centralize and manage our nation’s health care system. Towards this end, the Administration has put together a 1,342 page health bill that effectively trashes our Common Law rights -- our Rights of Life, Liberty and Property.
Rather than promote individual freedom, as should be government’s primary function, the Administration’s scheme is to centralize power through a National Health Care Board. The Board is to be made up of appointees who would have complete dictatorial authority to decide how much the nation will spend on health care annually.
Local Regional Alliances are planned with areas similar to congressional districts and appointed regional alliance boards set up in each district. These regional alliances, or government-appointed health care dictators, are to have complete authority to decide which health care plans will be offered to the citizens of their district.
These regional alliances, however, will be on a strict federal budget. So if alliances and their HMO’s see medical spending exceeding the per-capita limits set by the National Health Board, the bill requires them to cut payments to doctors, staff and hospitals -- in other words, to force providers to stay within budget. Provisions of the bill even limit what we can pay our own physicians out-of-pocket to the amount prescribed by the local alliances.
This means that, by law, regional boards must actively take steps to ration both the amount and the quality of health care provided to most citizens.
Worse yet, the system will be mandatory for most citizens -- but not, interestingly enough, for anyone on the federal government’s payroll.
There are 37 million Americans uninsured, we are told. No mention though of the 182 million Americans who are quite well-insured. No mention, either, of the 24 million Americans insured by Medicaid.
So we are told, to insure the 37 million uninsured (and this number is very, very suspect), the 228 million people with health care insurance are to be inconvenienced -- and the 182 million Americans with great health care coverage will be degraded down to some government mandated norm.
Is this an exercise in the rugged American individualism that made this country great, or is it the collectivist method of Socialism?
It should also be noted that the Administration is surprisingly silent about the bureaucratic health care fiasco the federal government already operates -- this country’s largest existing health care organization -- the Veteran’s Administration Hospital network.
“The federal government now spends 42 cents out of every health care dollar,” wrote Representative Dick Armey(1) in The Wall Street Journal.’
In another article(2), Representatives Dick Armey and Newt Gingrich gave a blistering account of the Administration’s plan for socialized medicine:
“All Americans will have to rely on the government for health care and the government will tell them what they can get, where they can get it, whom they can get it from, and how much they can spend for it”. [The Program] “would create 105 new bureaucracies, expand 47 others, make major changes in the tax laws, and promulgate more than 100 new federal regulations.” …
[The Program is] “teeming with new quasi-governmental agencies, all overseen by a seven-member National Health Board whose decisions would not be subject to judicial review.”
The VA alone has three volumes of U.S. code on medical care. Therefore, one very important question demands asking: Exactly how many volumes of laws, rules, and regulations would be required if the federal government attempted to control the whole country’s medical system?
This is a very important question. A few years ago, Business Week reported that there are more than 100,000 new laws, rules and regulations enacted in the United States each year. Between 1976 and 1986, state legislatures alone made up 248,000 new laws. And, on average, each of these laws spurred at least ten new regulations.
The Federal government is much worse. Forget all of the enacting laws for a moment. There are 11,585 pages of IRS regulations, 11,270 pages of regulations for Agriculture, 11,808 pages for the EPA, and 5,368 for Labor, to name just a few affecting our personal activities. A quick look in the Cincinnati Public Library federal government section showed 211 books containing 122,027 pages of Federal regulations imposed directly on the American citizenry.
No elected or appointed member of government has a working knowledge of all of these laws, rules and regulations. No career agency bureaucrat can even accurately interpret their own agency’s code. Still, citizens are expected to know and obey all 211 books of federal regulations!
Take, for instance, the annual antics of one well known agency, the IRS: The misinformation often provided citizens by career employees of the IRS is well documented, even in the Congressional Record.
In reality, because there are so many federal laws, rules and regulations, many are seldom enforced. Rather they are only researched and trotted out as a club for use against so called “citizen activists” -- those of us silly enough to question the reasoning or authority of some minor bureaucrat.
During Janet Reno’s Senate conformation hearing she was overheard agreeing with Senator Biden that “ignorance of the law is no excuse”. Apparently, it’s not important that no single person in government has the responsibility of knowing all this law. Citizens are!
If a citizen were to actually take the time to read, understand and obey all these many thousands of pages of rules and regulations contained in the 211 books, would that citizen be safe from prosecution? Probably not! Congress and the regulatory agencies change these laws, rules and regulations almost on a weekly basis.
And so it would be, if the federal government were to centralize control of our nation’s health care insurance. A full-time Congress will change the law full-time. So will the many bureaucrats in the associated regulatory agencies. That’s the whole of their job description, after all.
With these facts in mind, We the People must ask: Exactly, how many more laws, rules and regulations will be enacted to socialize medicine in this country? And how often will Congress and the regulatory agencies change these laws, rules and regulations -- with or without our knowledge?
--
The public good is in nothing more essentially interested than in the protection of every individual’s private rights. -- Sir William Blackstone in The Commentaries on the Law
Public Rights Versus Public Wrongs
Back in 1660 John Locke wrote of individual or, as he called them, “natural” rights and the problem of allowing government arbitrary power over the citizens. The Founding Fathers knew Locke’s writings well and quoted him extensively. In Of Civil Government(3) Locke writes:
“First, it is not nor can possibly be absolutely arbitrary over the lives and fortunes of the people. For it being but the joint power of every member of society given up to that person, or assembly, which is legislator, it can be no more that those persons had in a state of nature before they entered into society, and gave it up to the community. For nobody can transfer to another more power that he has in himself; and nobody has absolute arbitrary power over himself, or over any other to destroy his own life, or to take away the life or property of another.”
Although Locke was quoted extensively, another English citizen had even greater influence on our Founding Fathers. In the years prior to the American Revolution, it was said that every American gentleman owned at least two popular books. The most important book to the Colonists, of course, was The Bible. The second most important book to the gentlemen of the American Colonies was Blackstone’s Commentaries On the Law.
Blackstone’s Commentaries, describing English Common Law, started appearing here in 1765. The first American edition was printed in Philadelphia in 1771 -- with a pre-ordered run of 1,400 copies. The text is still well read and can be found in any American law library.
Blackstone writes that the Absolute Rights of Individuals(4) “may be reduced to three primary articles”.
The right of personal security “consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.”
The right of personal liberty “consists of the power of locomotion, of changing situations, or moving one’s person to whatever pace one’s own inclination may direct”.
The right of private property Blackstone defines as consisting “in the free use, enjoyment and disposal by a man of all his acquisitions, without any control or diminution, save only by the laws of the land”.
Each arm of this sometimes called “trinity of rights” -- our inalienable natural rights of life, liberty and property -- would be violated by any governmental scheme to nationalize health care in the United States.
The rights described by Locke and Blackstone are said to be Natural Rights, or the fundamental and inalienable rights every man already had in nature, before entering society. As citizens of an organized society, we are also said to have Positive Rights.
As a Member of the first United States Congress, Representative James Madison entered a description of both types of rights into the Congressional Record (5). At the time, Madison was introducing a bill for Constitutional Amendments we now know as The Bill of Rights.
Positive Rights, such as trial by jury, are those rights “that cannot be considered as a natural right, which regulates the action of the community, but a right resulting from a social compact which regulates the action of the community, but is essential to secure the liberty of the People as any one of the pre-existent rights of nature.”
Natural Rights are “those which required no constitutional protection” and the addition of amendments covering them would only be ‘declaratory’ of their inviolability.” (emphasis added)
Positive Rights can be found throughout the body of the Constitution, as well as in the Bill of Rights. When searching for those Certain Inalienable Rights Thomas Jefferson wrote about in the Declaration of Independence, however, most legal scholars usually point to the Ninth Amendment:
The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
--
Whenever a separation is made between liberty and justice, neither, in my opinion, is safe. --Edmund Burke
An Assault on Our Person
As Blackstone identified 239 years ago, one of our most important natural rights is our right to our own personal security -- our legal and uninterrupted enjoyment of our life, our limbs, our body, our health and our own reputation. Little is more fundamental or more important than our own personal right to privacy and the complete control over our own body.
The Ninth Amendment to the Constitution is an outward statement in defense of the inherent natural rights of the individual -- a written indication in support of the concept of the individual sovereignty so cherished and fought for by our Founding Fathers. As President John Adams told the people “You have rights antecedent to all earthly governments, rights that cannot be repealed or restrained by human laws; rights derived from the Great Legislator of the Universe.” Happily, many of today’s legal scholars still agree with Adams.
For instance in a discussion of the Ninth Amendment with Senator Joseph R. Biden (6), Judge Souter affirmed that “in my interpretive enterprise, I have to start with the text and I do not have a basis for doubting that somewhat obvious and straightforward meaning of the text.”
Privacy, as pertaining to health care -- and our personal decisions over presenting our body for medical treatment -- has been debated in this country for over two decades. The law is clear. Our right to our own personal security and privacy precludes any governmental restrictions in these matters.
For instance, in Griswols v. Connecticut (7), Supreme Court Justice Goldburg writes:
“The Connecticut birth control statute was held void as a violation of the ‘rights of privacy’ under the Ninth Amendment as well as under specific guarantees in the Bill of Rights.
“The court stated many years ago that the Due Process Clause protects those liberties that are ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental.’
“While this court has had little occasion to interpret the Ninth Amendment, ‘it cannot be presumed that any clause in the Constitution is intended to be without effect.’
“The Ninth Amendment shows a belief of the Constitution’s authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive. As any student of this Court’s opinions knows, this Court has held, often unanimously, that the Fifth and Fourteenth Amendments protect certain fundamental personal liberties from abridgment by the Federal Government or the States. … The Ninth Amendment simply shows the intent of the Constitution’s authors that other fundamental personal rights should not be denied such protection or disparaged in any other way simply because they are not specifically listed in the first eight constitutional amendments.
“In sum, the Ninth Amendment simply lends strong support to the view that the ‘liberty’ protected by the Fifth and Fourteenth Amendments from infringement by the Federal Government or the States is not restricted to rights specifically mentioned in the first eight amendments.
… “as the Ninth Amendment expressly recognizes, there are fundamental personal rights such as this one which are protected from abridgment by the Government though not specifically mentioned in the Constitution.
“In a long series of cases this court has held that where fundamental personal liberties are involved they may not be abridged by the States simply on a showing that a regulatory statute has some rational relationship to the effectuation of a proper state purpose.”
So, as we see from Goldberg’s opinion, there are “rights to privacy” (the word rights is in the plural), and that “fundamental rights exist that are not expressly enumerated in the first eight amendments.” Furthermore, we see that “the liberty protected by the Fifth and Fourteenth Amendments from infringement by the federal Government or the states is not restricted to rights specifically mentioned in the first eight amendments.”
If the regulation of the “right” to birth control, a minor medical treatment, is unconstitutional, may we not extrapolate a bit and say that the government regulation of all medical treatment would be very unconstitutional?
That was back in 1965. In 1980 Chief Justice Burger held that rights “even though not expressly guaranteed, have been recognized by the Court as indispensable to the enjoyment of rights explicitly defined(8).” (emphasis added)
In his majority opinion, Chief Justice Burger ruled:
“Notwithstanding the appropriate caution against reading into the Constitution rights not explicitly defined, the Court has acknowledged that certain unarticulated rights are implicit in enumerated guarantees. For example, the rights of association and privacy, the right to be presumed innocent, and the right to be judged by a standard of proof beyond a reasonable doubt in a criminal trial, as well as the right to travel, appear nowhere in the Constitution or Bill of Rights. Yet these important but unarticulated rights have nonetheless been found to share constitutional protection in common with explicit guarantees. The concerns expressed by Madison and others have been resolved; fundamental rights, even though not expressly guaranteed, have been recognized by the Court as indispensable to the enjoyment of rights explicitly defined.”
In Roe v. Wade(9), Justice Blackmun wrote, “Our cases long have recognized that the Constitution embodies a promise that a certain private sphere of individual liberty will be kept largely beyond the reach of the government.” In this case the subject is the kind of medical treatment we determine appropriate for ourselves.
The federalized health plan would allow the government to inquire into, and punish people for, seeking and contracting for the type of health care they believe necessary for their own bodies. It would provide, in effect, an unconstitutional general search warrant to snoop into our most personal of effects: our own body.
No right is more fundamental and natural than our sovereignty over the care of our own body. And, as Justice Cardozo (10) ruled in Schloendorff v. Society of New York Hospitals: “Every human being of adult years and sound mind has a right to determine what shall be done with his own body.”
--
The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated. -- Fourth Amendment to the United States Constitution
An Invasion of Personal Security
As early as 1886 the Fourth and Fifth Amendments were held to “apply to all invasions of a man’s home and the privacies of life. It is not the breaking of his doors and the rummaging of his drawers that constitutes the essence of the offense;” the Supreme Court ruled (11), but it is the invasion of his indefensible right of personal security, personal liberty and private property.
The Administration’s health care scheme is an obnoxious attack on our personal security. As part of the plan, doctor s must report every patient visit to a national electronic data bank, which will store the medical histories of all Americans.
Already, Senators Kennedy and Riegle are getting into the act. Senate Bill 732 -- ostensibly, a bill calling for the government to pay for the immunization of all children for preventable diseases -- has some very surprising computer related sections included.
The bill calls for a computerized immunization registration National Tracking System. It mandates that a database include every American child’s shot record, as well as complete medical history, family history, school record, and criminal record.
Of course, the children’s family history must also include the parents’ and siblings’ personal information. Some of the required parental information includes: date and place of birth, educational level, occupation, psychological and medical history, drug and alcohol abuse history, marital status, and criminal record. All data is to be shared between the States and any “interested Federal agencies.”
The Administration’s scheme is similar, except it includes every American citizen.
Another disturbing aspect of the Administration’s health plan is the identification card. For many years policing agencies have wanted citizens to carry proper identification. Now government officials may get their wish under the guise of health care. Health cards are intended to quickly become the national identification card, and then some.
Magnetic card readers are cheap. So initially, there are plans for a programmable magnetic strip on the back of the health security cards. Magnetic strips, however only hold a limited amount of information.
Ultimately there will be a computer chip inside the card which will carry a great deal of information. Selected companies around the country are already working on such devices, as well as low cost equipment that can easily read from and write to them.
“Smart cards with a microprocessor and memory chips currently hold the equivalent of 30 pages of data,” William M. Bulkeley(12) reported in The Wall Street Journal. “An optical card now holds about 2,000 pages of data.”
Clifford Krauss(13) reported in The New York Times that “Civil liberties groups have long argued that such cards would infringe on the privacy of citizens and facilitate greater Government surveillance of individuals. The concern that the health care cards could become de facto national identification cards is shared by several officials in the White House and Justice Department.”
The identification method most desired by two Federal agencies, the FBI and the IRS, is our DNA, or genetic code sequence. The FBI and IRS have wanted this gene typing used as the nation’s official identification for many years -- and, for many reasons.
How would a long numerical sequence -- such as four different groups arranged in sixty-four different triplets -- like your individual genetic code, be used you might ask? No problem, the Administration already has a system worked out. A genetic code registration fits right in with Clinton’s proposed Health Security Card plans. After all, DNA typing is also health related information.
Gautam Naik(14) reported in The Wall Street Journal that already, “Data banks that store the unique genetic mugshots of thousand of convicted criminals are opening up a brave new world for crime fighters.” Twenty states now have such data banks and the FBI is working on connecting the systems in a “computerized network that will aid in searches for suspects who have crossed state lines.”
Health insurers also like the DNA registration plan for some of the same reasons: It will allow them to easily identify those with a genetic predisposition for many medical and psychological anomalies.
Stephen E. Bajardi, Executive Director of Huntington’s Disease Society of America(15) wrote: “More than 4,000 disorders are believed to have a genetic component. While many are not life-threatening, insurers are hungry for information that pinpoints high-risk individuals likely to require expensive medical care.”
The Supreme Court has repeatedly ruled that citizens have “the right to be let alone” by government. For instance in Olmstead v, United States, Justice Brandeis(16) wrote:
“The protection guaranteed by the [Fourth and Fifth] Amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. … They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights and the right most valued by civilian men.”
The Fifth Amendment provides that the Federal government shall not deprive a person of his life, liberty, or property without due process of law. The same restriction is levied on the states by the Fourteenth Amendment.
And, in Allgeyer v. Louisiana, the Court ruled in favor of freedom of action. Perhaps this “action” could also include the right and freedom of hiring one’s own physician?
“Liberty under the due process clause of the Fourteenth Amendment includes the right of the citizens to be free in the enjoyment of all of his faculties. Thus it means not only freedom of person but also freedom of action.” (17)
If sitting Justices are consistent with their own past rulings, the socialized health care scheme will fail at the Supreme Court level. In Thornburgh v. American College of Obstetricians, Justice Stevens (18) wrote:
“The concept of privacy embodies the moral fact that a person belongs to himself and not to others in society as a whole.”
Also, just two years ago, in Planned Parenthood of Southeastern Pennsylvania v. Casey, Justices O’Connor, Kennedy and Souter(19) ruled that “all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States.” Yes, they wrote “ALL”!
“[The Due Process Clause of the Fourteenth Amendment] declares that no State shall ‘deprive any person of life, liberty, or property, without due process of law.’ The controlling word here is ‘liberty’. Although a literal reading of the Clause might suggest that it governs only the procedures by which a State may deprive persons of liberty, for the last 105 years at least since Mugler v. Kansas, 123 U.S. 623,660-661 (1887), the Clause has been understood to contain a substantive component as well, one ‘barring certain government actions regardless of the fairness of the procedures used to implement them.’ … Thus all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States.
“It is tempting, as a means of curbing the discretion of federal judges, to suppose that liberty encompasses no more than those rights already guaranteed to the individual against federal interference by the express provisions of the first eight amendments to the constitution. … But, of course this Court has never accepted that view.”
So, the Due Process clause contains a “substantive component” barring certain government actions regardless of the fairness of the procedures used to implement them. That takes care of “fairness,” one of the Administration’s favorite terms.
In the opinion of these sitting Justices, all fundamental rights comprised within the term liberty (see the section on Blackstone) are protected by the Federal Constitution. Also remember Justice Stevens words, that “a person belongs to himself and not to others in society as a whole”.
And this “liberty” as we saw, includes “the right to be let alone” by government.
--
The Federal Government was a government of delegated powers and it was not granted the power to intrude upon fundamental personal rights. --Alexander Hamilton, The Federalist Papers No. 84
No Constitutional Authority
Under Sec. S402 [d]: 5401 of the proposed bill, there are to be new categories of federal crimes. Penalties are up to, and including, life in prison. And, of course, that most blatant of government’s tyrannical acts, civil forfeiture, is also included.
In this case, the health board’s “inspector general” would receive all forfeited property, “to expand investigative activities.” So, as with the drug task forces, the investigators keep what they take from citizens -- which, in turn, encourages even more civil forfeiture taking of property from citizens.
Even the common act of paying a doctor for medical treatment could become bribery under Sec. 5434, punishable by up to 10 years in prison.
A slight extrapolation, based on public comments of Administration officials: Look for a “Wellness Ethic” soon after the scheme is passed. They’ve already started on cigarettes. Next will be laws concerning over eating, drinking, exercise, etc.
Again, citizens must ask: Exactly, under whose authority are they doing this? No section of the Constitution gives authority to Congress, or the Administration, to provide health care security for the citizens of the United States. Rather, there are dozens of Supreme Court opinions clearly stating that the federal government is one of clearly enumerated powers. Yet, half of Congress seems ready to jump on the Administration’s health care bandwagon.
David B. Rivin, Jr. called it correctly in an excellent Wall Street Journal(20) op-ed piece:
“… every man, woman and child in the U.S. must participate in the system. The healthy must subsidize the sick, the young must subsidize the old; the not so old must subsidize the very young. …
“Where, exactly, does the U.S. government get the power to require that every one of its citizens must participate in a government-sponsored health care plan?
“Congress will be able to regulate you not because of who you are what you do for a living, or whether you use the interstate highways, but merely because you exist.
“If Congress can regulate you because you are, then it can do anything to you not forbidden by the handful of restraints contained in the Bill of Rights.”
Any student of American Government 101 learns that the Federal government is supposed to be one of clearly enumerated powers -- and, that those enumerated powers are set down in our Constitution for all to see. This concept is well established throughout the text of The Federalist Papers and in the rulings of a number of Supreme Court cases.
Most notable of the Supreme Court rulings is the 1803 opinion of Chief Justice John Marshall(21) in Marbury v. Madison in what amounted to a quarrel between President Jefferson and the Judiciary. In this case, the President won, but Marshall’s opinion has been a classic in American jurisprudence ever since.
“The original and supreme will [of the people] organizes the government and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments.
“The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed in writing, if those limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not outline the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the Constitution controls any legislative act repugnant to it; or, that the legislature may alter the Constitution by an ordinary act.
“Between these alternatives there is no middle ground. The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.
“If the former part of the alternative, then the legislative act contrary to the Constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.”
In McCulloch v. Maryland, Chief Justice Marshall(22) is noted for sustaining the doctrine of implied powers, and proponenting an implied limitation upon the States, preventing them from interfering with the functioning of federal agencies. Less quoted is Marshall’s warning in that same case:
“This government is acknowledged by all to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent to have required to be enforced by all those arguments which its enlightened friends, while it was defending before the people, found it necessary to urge. That principle is now universally admitted. But the question respecting the extent of the powers actually granted, is perpetually arising, and will probably continue to arise, as long as our system shall exist.”
So, even Chief Justice John Marshall, who gave us “implied powers” for the federal government, and “implied limitations” for the States, admits that there are, in fact, limits to the legislative power of the federal government.
Later opinions also agreed with Marshal. “The Federal government is one of enumerated powers. There are no legislative powers affecting the nation as a whole which belong to, although not expresses in, the grant of powers to Congress in the Constitution.” The Court said(23) in Kansas v. Colorado.
Last year on Sept. 15, 1993, the 5th Circuit Court of Appeals(24) held unconstitutional the Federal Gun Free School Zone Act of 1990, saying that the Act “does not appear to have been enacted in furtherance of any of the enumerated powers of the Federal government.”
So too, should the Courts hold unconstitutional any variation of the Health Care Security Act. The plan is a blatant and obnoxious assault on the fundamental rights and freedoms of the American people.
--
Congress shall have the power … To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes. -- Article I, Section 8: The United States Constitution
Health Care is Not Commerce
Many in Congress are of the opinion that the federal government may regulate anything that has once been in interstate commerce. Much of the Senate’s new Violent Crime Control and Law Enforcement Act of 1993, provisions for limiting our right to keep and bear arms, is based on this premise.
However, while some in the Senate were writing that telephone-book sized gun-grabber bill, the United States 5th Circuit Court of Appeals struck down the Federal Gun Free School Zones act of 1990. Circuit Judge Will Garwood agreed that Congress has the power to regulate interstate commerce in guns, but this act did not allege any connection to interstate commerce.
The question here is this: Just because a product was once shipped between states, does Congress have the power to regulate it forever? If not, then how long must the product be at rest, in a consumer’s hands, within the borders of a single State, before Congress has no further regulatory control?
And, as per our inalienable rights over property; once a citizen has complete ownership of an object, does not that citizen also have complete regulatory powers over said object? Has property ownership degraded to Congressional permission to hold and use a product, as directed by Washington, or may a citizen actually own an object? At what point of ownership may a citizen tell Congress to But-Out?
Congress has the power to regulate commerce among the several States, but has no power to regulate commerce within a State. In another well quoted Supreme Court opinion(25), Gibbons v. Ogden, Chief Justice Marshall ruled:
“The word “among” means intermingled with. A thing which is among others is intermingled with them. Commerce among the States cannot stop at the external boundary-line of each State, but may be introduced into the interior.
“It is not intended to say that these words comprehend that commerce which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States. Such power would be inconvenient and is certainly unnecessary.
“Comprehensive as the word ‘among’ is, it may very properly be restricted to that commerce which concerns more States than one. … The completely internal commerce of a State, then, may be considered as reserved for the State itself.”
Later, in Hammer v. Dagenhart(26), the court again agreed that: “It may be desirable that such [commerce] laws be uniform, but our federal government is one of enumerated powers. …”
“In interpreting the Constitution it must never be forgotten that the nation is made up of states, to which are intrusted the powers of local government. And to them and to the people the powers not expressly delegated to the national government are reserved. ...”
Seldom do Americans cross a State border to receive health care. Rather, health care is local commerce. Medications may move in interstate commerce, but patients usually do not. The family doctor is usually within a few miles of the patient’s home; the hospital may be a bit farther away but it is usually within the same State. Purchasing a service, within one’s own State, is then out of the legislative and regulatory reach of Congress.
As the Courts have ruled, sometimes even interstate contracting is beyond the reach of the federal government. For example: In Williams v. Fears(27), the court held a contractual arrangement for the furnishing of labor in another state was not a matter of interstate commerce -- and so not subject to regulation by the federal government.
Then, in Blumenstock Bros. v. Curtis Publishing Co.(28), the Court held that Contractual arrangements for advertising in a magazine published outside the state is not interstate commerce and thus is subject to State regulation, not federal.
The Court even held the business of professional baseball(29) to be a local activity and not interstate commerce, and therefore not subject to the Sherman Antitrust act. “The business is giving exhibitions of baseball, which are purely State affairs.”
These, and other Supreme Court rulings, show that a strong argument can be made against using the Commerce Clause as authority for federalizing health care in the United States.
--
… laws impairing The obligation of contrasts are contrary to the first principles of the social compact and to every principle of sound legislation. --James Madison. The Federalist Papers. No44
A Violation of Our Right to Private Contract
A contract is an agreement resulting in obligation. A contract is a promise, or a set of promises, for breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty. Our inalienable right to contract for goods or services -- with whomever and whenever we please -- predates the formation of the United States Government by hundreds of years.
Apparently, however, the many attorneys resident in the White House choose to disregard the hundreds of years of English and American custom and Common Law. On page 239 of the Administration’s health plan they state: “No health plan insurer, or any other person, may offer to any eligible individual a supplement health benefit policy that duplicates any coverage provided in the comprehensive benefit plan.”
If a citizen does contract for whatever treatment the Administration wishes to become a government pre-empted medical service, Page 241 states that the citizen “shall be subject to a civil monetary penalty (not to exceed $10,000) for each violation.”
According to Representatives Dick Armey and Newt Gingrich(30): “The bill denies funds for extended treatment of congenital conditions such as cystic fibrosis, cerebral palsy, and spinal bifida.” Apparently, people with these anomalies may contract for treatment of those specific problems, but no other.
In other words, depending on how the politically correct wind is bowing, sometimes citizens will be permitted to contract for medical services, but usually they will not!
In Nebbia v. New York(31), however, the Supreme Court had quite a different opinion:
“Under our form of government the use of property and the making of contracts are normally matters of private and not public concern. The general rule is that both shall be free of government interference. …
“The Supreme Court has consistently interpreted the Constitution to say that no State may pass any law impairing the obligation of contracts.”
It is an insult to the American people to even submit such an idea to Congress. And, since the Administration’s health care scheme is so foreign to our American way of life, it should be quickly struck down.
In defense of our Constitution, James Madison(32) wrote:
“The instability, injustice, and confusion introduced into public councils, have, in truth, been the mortal diseases under which popular governments have everywhere perished; as they continue to be the favorite and fruitful topics from which the adversaries to liberty derive their most specious declamations.”
Imagine what the Founding Fathers would say to the Clintons if they were to read the Health Security Act or listen to their social-psychobabble. . . .
The Health Security Act is so far removed from the ideals of Washington, Franklin, Madison, Hamilton, Jefferson, Adams, Henry, et al, that probably they would consider beginning the government anew. Possibly, they would call for another revolution. For sure, they would be heard.
We need such men today.
NOTE: The Federalist Papers has been cited as a source of constitutional law by the Supreme Court of the United States, and is so regarded by many legal authorities. In Cohens v. Virginia, the Court said: “Its intrinsic merit entitles it to this high rank [as a complete commentary on our Constitution], and the part of two of its authors performed in framing the Constitution, put it very much in their power to explain the view with which it was framed.”
--
Many a person seems to think it isn’t enough for the government to guarantee him the pursuit of happiness. He insists it also run interference for him. --Anonymous
Footnotes:
1. Your Future Health Plan, Representative Dick Armey, Oct. 13, 1993, P. A-20, The Wall Street Journal.
2. The Welfarization of Health Care, Dick Armey and Newt Gingrich, P. 53, Feb. 7, 1994, The National Review.
3. John Locke, Of Civil Government, 135 (1690).
4. . Blackstone’s Commentaries On The Law, Chapter I: Absolute Rights of Individuals.
5. 1 Congressional Proceedings 454, Rep. James Madison.
6. Nomination of David H. Souter to be Associate Justice of the Supreme Court of the United States, September 13, 1990.
7. Griswols v. Connecticut 381 U.S. 479, 486 (1965)
8. Richmond Newspapers, Inc. v. Virginia 448 U.S. 555 (1980)
9. Roe v. Wade, 410 U. S. 113 (1973).
10. Schloendorff v. Society of New York Hospitals (1914).
11. Boyd v. United States, 116 U.S. 616, 630 (1886).
12. Get Ready for “Smart Cards” in Health Care: William M. Bulkeley, May 3, 1993, P. B-5, The Wall Street Journal.
13. Clifford Krauss, P. A-9, Aug. 16, 1993, The New York Times.
14. Police Like Genetic Data Banks, But Critics Question Validity. Gautam Naik, Polic P. B-1. July 28, 1992, The Wall Street Journal.
15. Letter to the Editor, Stephen E. Bajardi. Executive Director, Huntington’s Disease Society of America, P. A-16, Oct. 16, 1992, The Wall Street Journal.
16. Olmstead v. United States, 277 U.S. 438, 72 L. Ed. 994, 956,48S. Ct. 564, 66 ARL 376.
17. Allgeyer v. Louisiana 163 U.S. 578 (1897).
18. Thornburgh v. American College of Obstricians, 106 S. Ct. at 2189 (1986).
19. Planned Parenthood of Southeastern Pennsylvania v. Casey 112 s. Ct. 2791 (1992). The Supreme Court’s Opinion: O’Connor, Kennedy, Souter.
20. Health Care Reform v. The Founders, David B. Rivkin, Jr. Aug. 29, 1993, P. A-17, The Wall Street Journal.
21. Marbury v. Madison: 1 Cranch 137: 2L. Ed. 60 (1803) Written by Chief Justice Marshall.
22. McCulloch v. Maryland 4 Wheaton (U.S.) 316; 4L. Ed. 579 (1819).
23. Kansas v. Colorado: 206 U.S. 46 (1907).
24. U.S. v. Lopez--- --- (1993).
25. Gibbons v. Ogden 9 Wheat 1; 6 L.Ed. 23 (1824). Chief Justice Marshall
26. Hammer v. Dagenhart, 247 U.S. 251; 62L. Ed. 1101; 38 Sup. Ct. 529 (1918).
27. Williams v. Fears: 179 U.S. 270 (1900)
28. Blumenstock Bros. v. Curtis Publishing Co., 252 U.S. 436 (1920)
29. Federal Baseball Cluv v. National League of Professional Baseball Clubs: 259 U.S. 200 (1922).
30. “The Welfarization of Health Care,” Dick Armey and Newt Gingrich, P. 53, Feb. 7, 1994, The National Review.
31. Nebbia v. New York: 291 U.S. 502; 54 S.Ct. 505;78 L.Ed. 940 (1934).
32. James Madison: The Federalist Papers, No. 10
###
