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  • Is National Health Insurance Constitutional?

    We have heard a great deal about the costs and benefits of a “public option” and  “single-payer system.”  We have heard about the financial costs—and the other costs—of allowing the government to interfere with matters of life and death.  However, we haven’t heard whether the Constitution gives Congress the power to enact these plans. What does this say about the status of the Constitution in the minds our policymakers today?  If a concerned citizen asks a proponent of nationalized healthcare to point to the constitutional authority for such a law, he may hear that the “General Welfare” clause, the “Necessary and Proper” clause, or the “Interstate Commerce” clause enables Congress to create national public health insurance to act.

    None of these clauses—or any others found in the Constitution—gives Congress the power to create a government healthcare system.

    The “General Welfare” clause gives Congress 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.”  This clause is not a grant of power to Congress (as constitutional law professor Gary Lawson has shown). It is a limit to a power given to Congress. It limits the purpose for which Congress can lay and collect taxes.

    During the founding, some Anti-Federalists were concerned that this clause “amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defence or general welfare.” But James Madison, the “Father of the Constitution,” explained very clearly that it granted no power to Congress. If the “General Welfare” clause gives Congress the power to promote the general welfare, then why specifically list the other powers in Article I, such as the power to establish post offices and post roads, or to coin money? Wouldn’t it be redundant to list them?

    In short, as Madison argued, Congress derives no power from the general welfare clause, which merely serves to limit Congress’s power to lay and collect taxes.  Congress can only do so for purposes of common defense or general welfare, in the service of the powers granted to it elsewhere in Article I.

    Second, “Necessary and Proper” gives Congress the power “to make all laws necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States.”  Like the general welfare clause, this clause was not a stand-alone grant of power to Congress.  Rather, it authorizes Congress to make laws that are necessary (and also proper) to make the other grants of authority in Article I effectual.

    In other words, the necessary and proper clause cannot itself authorize national public health insurance.  One would have to show that national public health insurance is necessary and proper to execute some other power granted in the Constitution.This puts the proponents of nationalized healthcare back where they started.

    Lastly, proponents might argue that national health insurance is part of Congress power “to regulate commerce…among the several states.”  While progressives have often used this clause to expand the federal government, it does not apply especially to the creation of a national health insurance, because to create and engage in commerce is not the same thing as regulating commerce among the several states.

    Nobody during the framing generation expected the commerce clause to expand the federal government’s authority to anything relating to or resembling commerce.  James Madison wrote that it is a power “which few oppose, and from which no apprehensions are entertained.”  The clause was designed to prevent some states from taxing goods that passed through their boundaries as those goods proceeded to market.

    In case proponents of government healthcare latch on to another clause, the three clauses above and rest of Constitution are explained in depth in the Heritage Guide to the Constitution .

    Of course, most progressive advocates of national health insurance are unconcerned whether the Constitution authorizes such a law when a pseudo-constitutional reasoning to reach the desired result will suffice.  But constitutionalists should not allow such attempts to dismiss the Constitution go unanswered.

    Posted in First Principles [slideshow_deploy]

    75 Responses to Is National Health Insurance Constitutional?

    1. BW, Georgia, USA says:

      Thank you! Finally, someone is answering the same question I have had all along. I do not know why there has even been any debate wasted about specifics of a "Healthcare Plan" until the Contitutionality has been decided. We need some elected officials who will apply Contitutional rationale not only to new plans, but also to review and reconsider existing parts of the governement.

    2. Terence W Laginess, says:

      Do you suppose that the Supreme Court of the United States, as presently constituted, would find single payer government controlled national health-care insurance to be constitutional? What would the argument be to justify such a thing?

    3. Terence W Laginess, says:

      I would find it hard to imagine that any verdict on this question would be unanimous.

    4. Patrick J Allen Ha says:

      Does the Constitution allow the people any recourse to these blatant usurpations of America's founding documents by the left?(reconciliation, cap and trade, endless gov't takeovers)

    5. AWM -Indiana says:

      I agree with BW- I have also been waiting for the Constitutionality question to come to the forefront. I went back and read- and then re-read-the entire Constitution, and can find absolutely nothing which provides Congress with the powers which they are assuming! Could someone with the appropriate knowledge/understanding share with me as to whether we must wait until the country is burdened with this travesty before we would be allowed take Congress to task, via the courts?

    6. David A. Fennell says:

      A most excellent summary

    7. Karen. Michigan says:

      Great explanation. Thanks foraging it out so well. Why is ther not more public comment on this?

    8. J.C. Hughes, Texas says:

      "Is National Health Insurance Constitutional?" NO! Try telling that to constitutional illiterates like Obama, Reid and Pelosi. They all swore to uphold and defend a document they've demonstrating they don't understanding. Either that or they're purposely mocking the nation's principle guiding mandate. Either way, they're pushing legislation that's guaranteed to have a catastrophic ending for both healthcare and freedom. Obamamaniacs accuse concerned town hall participants of spreading FEAR? You're damned right they are. They've been given insight into 1000 pages of crafted government power grabbing legalize. True, they don't sit there like wide eyed Obamamaniacs with their fly traps open soaking up every empty word the demagogues' spew out. Folks are rightfully scared of the left wing's unconstitutional and totally misguided healthcare reform bill. It absolutely must not be allowed to pass. If it does, the individual states must summon their powers to challenge the bill's implementation. Even if it means divorcing themselves from an abusive out-of-control national government.

    9. JRL says:

      I had the opportunity to meet with my local congressman, Buck McKeon a couple of weeks ago. After discussing TARP, Cap and Trade, Health Care Reform, etc., I asked him if Congress ever considers the Constitionality of any of the bills it passes. He laughed and said if that were tken into consideration, it would be a rare bill indeed that would come before Congress, leaving them with little to do. Now that's a promising thought. A part time legislature.

    10. J.C. Hughes, Texas says:

      Darn spelling block. I meant legalese, not legalize. The latter better describes the interests of potheads that helped elect Obama.

    11. Foxwood says:

      Do you believe the Constitution is the rule of law? Do you believe in the original intent of our founding fathers? Do you want to reform Congress? I'm not talking about reforming a Democratic Congress, but Congress.


    12. Marc, Holland Michig says:

      I teach Business Law part-time at several local universities. Each term, when we are studying the sources of law and the Constitution, I conduct an exercise which basically forces my students to scour the Constitution in search of a federal "health care" power. It is truly astounding to see how many of them never seemed to question whether such authority exists. Somehow the idea that the federal government was intended to be one of limited powers doesn't seem to sink in at the high school level. Go figure.

    13. Pingback: AntiObamaBlog.com » Is National Health Insurance Constitutional?

    14. Dennis Gundy - Plano says:

      During the course of several months I've seen (and participated in) numerous post regarding the Constitutionality of actions taken by Congress vs the original enumerated powers granted.

      I have attended more than one Tea Party and Town Hall meeting where I've heard time and time again the refrain "…show me where in the US Constitution Congress has the right……"

      So, here is the REAL story on 'enumerated powers' of Congress, and why they can enact into law the actions that are not in the US Constitution – and what checks and balances still remain to control them:

      General Welfare – Article I, Section 8

      "…grants Congress 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."

      The language, general Welfare, has prompted debate over the extent to which it grants powers to Congress that exceed those stated powers specifically enumerated in the Constitution (I.e., lay and collect Taxes, etc.).

      Thus the precise meaning of the clause was never been clear, and has been debated since the early 1800's – in large part due to its peculiar wording and placement in the Constitution.

      Because it makes up a part of the clause related to Congress's spending power, but does not specify if or how it affects that power, it has been confusing.

      As an example, through use of conditional appropriations Congress could, in theory, use its power to spend as a tool to regulate areas otherwise reserved to the states. This raises the issue of the extent to which Congress may achieve indirectly, through its power to "spend for the general welfare," that which it cannot legislate directly under the Congress's powers enumerated in Article I, Section 8.

      When the Constitution was adopted, there were many that interpreted this clause (general Welfare) as granting Congress broad power to pass any legislation it pleased, so long as its asserted purpose was promotion of the general welfare.

      One Constitution's drafter, James Madison, objected to this reading of the clause. Madison argued that it was inconsistent with the concept of a government of limited powers and that it rendered the list of enumerated powers redundant. He argued that the General Welfare clause granted Congress no additional powers other than those enumerated. Thus, the words themselves served no practical purpose.

      In the Report on Manufactures (1791) by Alexander Hamilton, he argued that this clause (general Welfare) was to allow the authority of Congress the power to tax and spend by allowing it to tax and spend for the general welfare as well as for purposes falling within its enumerated powers.

      Further, he argued, the general Welfare clause granted a distinct power to Congress – allowing Congress to use its taxing and spending powers in ways not falling within its other enumerated powers (I.e., taxation, etc.).

      In the United States v Butler (1936) the U. S. Supreme Court first interpreted the clause during that lawsuit. Justice Owen Roberts, in his majority opinion, agreed with Hamilton's view and held that the general welfare language in the taxing-and-spending clause constituted a separate grant of power to Congress to spend in areas over which it was not granted direct regulatory control.

      However, the Court also stated that this power to tax and spend was limited to spending for matters affecting the national, as opposed to the local, welfare.

      Justice Owen also ruled that the Supreme Court should be the final arbiter of what was in fact in the national welfare. In the Butler decision, however, the Court shed no light on what it considered to be in the national—as opposed to local—interest, because it struck down the statute at issue on Tenth Amendment grounds.

      The Court modified its holding in the Butler decision in Helvering v. Davis (1937). This case was to define the old age benefits provision of the Social Security Act (1935), and which was sustained by the Court.

      Being adopted by that case an expansive view of the power of the federal government to tax and spend for the general welfare occurred since the Court maintained that although Congress's power to tax and spend under the General Welfare clause was limited to general or national concerns, Congress itself could determine when spending constituted spending for the general welfare.

      Since that ruling there have been numerous challenges brought forth in the Supreme Court. However, no legislation passed by Congress has ever been struck down because it did not serve the general welfare.

      Additionally, congressional power to legislate under the Commerce clause (AKA Interstate Commerce Act) has expanded the areas falling within Congress's enumerated powers, the General Welfare clause has decreased in importance.

      However the Court has seen fit to note in the Helvering and subsequent challenges that Congress has a 'check and balance'- the House can recommend, propose and pass 'general Welfare' spending Bills above the enumerated powers defined in the US Constitution, the Senate can approve or disapprove these, and if approved the President (Executive Branch) can veto those that are not in the best interest of the people, or are in conflict with States Rights (10th).

      On a personal note: I disagree with Helvering. I feel it was, and is used, for pet projects as well as for the general Welfare (I.e., The Ike Interstate Highway Bill was passed under the 'general Welfare' criteria).

      What is really disturbing to me in the present HC (called either Insurance reform or whatever) 3200 there is NO mention of the 'general Welfare' as predisposition for justifying the Bill.

      This is unheard of – all previous legislation that fall outside of Congresses enumerated powers (I.e., Medicaid, etc.) are 'justified' and condoned with this reference.

      Is it an oversight – I doubt it considering there are more lawyers in the actions of this Bill than most any other ever proposed on the Hill.

      In any event – I trust the above analysis puts to bed the issue of 'constitutionality' of the actions of Congress under 'general Welfare'.

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    18. MLB Milwaukee, WI says:

      Thank you, great read! You would think Obama, a professor of Constitutional Law would know this! When is someone going to step up to the plate and question the constitutionality of the purposed “Healthcare Plan”?

    19. MLB Milwaukee, WI says:

      Thank you, great read! You would think Obama, a professor of Constitutional Law would know this!

    20. Pingback: Is National Health Insurance Constitutional? » The Foundry | The insurance world blog

    21. Marc, Holland Michig says:

      The problem, of course, for us Constitutionalists is that 60 years of U.S. Supreme Court precedent is going to render national regulation of health care sustainable under the commerce clause. Absent a significant retreat from this precedent, which is highly unlikely, Obama's plan would be deemed constitutional by the courts.

    22. curt L. Columbus, O says:

      This debate (and most others) is over the wrong questions.

      Its a good thing that our forefathers valued freedom more than free health insurance and small carbon footprints.

      We have been trained to be self centered hogs of immediate gratification just for this moment, and I'm glad we are resisting the urge to feed at the trough this time.

      Thanks Heritage for asking the right question.

    23. Jim in Wisconsin says:

      I don't think the current rulers in Washington are concerned one whit about "constitutionality".

      They view the Constitution as a flawed document, made null and void by the fact that it was written by white property owners, who in some cases included slaves among that property.

      The bankruptcy laws that came originally from English common law have been trampled under the designer shoes of our new power elite. The liberals hold both chambers of our legislature, they hold the White House, and they hold the majority in the Supreme Court, whose original function has been extended to include legislation from the bench.

      They have, at minimum, a two-year runway from which to launch pretty much whatever they want. They will ramrod this healthcare legislation through with a parliamentary trick in the Senate, requiring only 51 votes, of which they hold 60.

      The United States of America had a pretty good run, over 230 years. But elections have consequences. The American people voted this juggernaut into office because many of us cannot read and comprehend anything that doesn't fit on a bumper sticker, and cannot understand consequences.

      In the best tradition of democracy, we have witnessed a bloodless revolution. Sit back and get used to it. It happened while most of us were paying attention to "American Idol".

      We are going to get exactly what we deserve.

    24. Miguelina Lewandowsk says:

      Thank you for the info. We need Mark Levin and others Constitutional Lawyers to fight Obama Health Care to see who gave Congress the right to impose such plan to the American people.

      Thank you, Proud of THE Heritage Foundation.Org

    25. curt L. Columbus, O says:

      Speaking of asking all the wrong questions, let's not stay so focused on healthcare that we forget that the denate is preparing to vote on Cap and Tax while we are distracted.

      The two issues are mutually distracting forces!

    26. charles cannon, cash says:

      Expand the amount of charitable contributions, encourage public figures to urge private citizens to donate their charitable contributions to private charities specializing in health care – and then let the market work its timeless magic.

    27. Kyle C. Akers, M.D. says:

      In 1913 Congress felt it necessary to enact a constitutional amendment (16th) to levy federal income taxes. Would this current Congress feel so compelled today on the same question? I doubt the 1913 Congress would consider enacting federal health care without an amendment.

    28. harleyj says:

      If Heritagers can't live with the ebb and flow of ideas, principles & processes in our democratic republic including the appointive power of presidents, re SCOTUS, with the advice and consent of the senate, I guess you need to go and take over Mexico and impose your narrow scoped rigid ideological agenda there with the "…blood of patriots and tyrants…" but not the money…!

      Our system necessarily allows for interpretation & re-interpretation of the constitution in the context of dynamic and incessant change as explained best by Thomas Jefferson (below). Maybe some of you whose minds are not limited by rabid adherence to rigid ideology can understand the following. I have my doubts about most of you!

      Panel four at the Jefferson Memorial:

      "I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors."

      Original Passage:

      "I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the same coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors."

      – to Samuel Kercheval, July 12, 1810

      Edith Hamilton, SPOKESMEN FOR GOD, wrote a profound notion which applies to all who have–but may or may not use–brains, "…intellectual certainty is the end of knowledge…" Emerson said, "consistency is the Hobgoblin of little minds."

      There are those among you who actually believe the methods of governance in 1810–when the US was a sparsely populated, rural, agrarian, rugged individualist, simple society unencumbered by complex international entanglements–could possibly answer the call of a nation in 2009 which is a densely populated, super urban, techno-industrial, complex, inter-dependent (individually and as a nation) society mired in the quicksand of myriad international entanglements. If Jefferson could see the lunacy of that assumption in 1810, how is that many of you Heritagers cannot? Shame on you for not using the mind God gave you!

    29. harleyj says:


    30. Linda Carlsbad, CA says:

      Is it in our Constitution that our government can take over our private industry? Is it in the Constitution that our government can put us in trillion of dollars in debt? Is it in the Constitution that our government doesn't listen to the American People? Of course it is not in the Constitution that they can take over our PRIVATE HEALTH CARE, but in the name of a SOCIALIST GOVERNMENT, IT IS THEIR WAY!

    31. Ben C, Ann Arbor says:

      Hmmmm. Define "General Welfare" If "General Welfare" means greater than 50% then the 47 million "uninsured" are not greater than 50% of our population. If "General Welfare" means any amount of our population, then we are truley at the end of our political life and Tytler was correct.

    32. Earl, Queens, NY says:

      Health care, I’m sure, is unconstitutional. But likewise, so is the government takeover of so much of the private sector which we have seen since 1/20/09. The bottom line is that the leftwing liberal statists could care less about the constitution if it gets in the way of their agenda. For a long time they have had contempt for the 2nd Amendment right to keep and bear arms. And now they also show contempt for our 1st Amendment right to speak out against their leftwing policies. It’s a pity to see where this country is now heading. If our founding fathers were alive today, perhaps they’d call for another revolution!!

    33. duelles, santa fe says:

      Marc – business law prof – we need more like you. I attended a party for my son's law school graduation. One Lady Prof proudly announced that "we have no Republicans on our faculty".

      I simply responded that I was happy to see such tolerence being exhibited and taught at our intitutions of higher learning.

      Thank You Hetititage for the James Madison reference to the, "wouldn't that be redundant" comment.

      My love for the Constitution is equal to the love of having the ammunition to defend and define it.

      Harleyj, scream from the roof tops if you must. Because a process gets corrupted doesn't make it right. The Dr. Suess land of legal precedent in which we live is based only on the last lawyers win in court, NOT ON THE PRINCIPLES ON WHICH THE COUNTRY WAS FOUNDED AND WRITTEN INTO OUR CONSTITUTION.

      We do interpret law. Some interpretations go beyond the basic principles set forth and range into wish lists of agrieved litigants. Sadly, it can take generations to undo decisions -good or bad. We get that.

    34. william new braunfel says:

      It seems nobody in government is willing to stand up and challenge the constitutionality of this administration how can we make congress do their job or even the supreme court whose job is it really oh well i guess it falls to WE THE PEOPLE don't worry there are still allot of us ready to stand for our constitution

    35. Tim Az says:

      Very interesting. The liberal elitists have always hungered for more gun control. They have reached a point at which they can not advance gun control further without first instituting speach control. Speach control would also help them advance health control. If the liberal elitists succeed at speech control, gun control, and health control exactly what control is left to the people themselves to control. In the end it's known as communism as well as many other names. This is the utopia that Harleyj offers you under the guise of enlightenment through the bastardization of the Constitution Of The United States Of America.

    36. John, NE says:

      If this nonsense gets passed by congress AND there is a question of it being a law that violated the constitution.

      Let's file a suit with the Supreme Court!!

    37. Tom, Chicago says:

      I thought the Obama gang was goign to save or create 3.5 million jobs? Why are they pushing through an agenda that will cause 1 million (is it more? less?) insurance brokers, agents, and angencies to close and lose their jobs? Seems counterproductive. More people out of work equals less tax revenue and more unemployment insurance. This means bigger deficits and then more taxes reaching into the middle class. Can't people see the tsunami coming? Do they have to hear it before they believe it?

      Wow, what idiot economist do they have working that side of the aisle?

    38. Gary, OH says:

      Regarding, "to provide for…general welfare" and in the context that the founders wrote the constitution to limit governmental powers in order for citizens to remain free, only Stalin or Lenin would argue that this statement allows for government control over one of our most basic freedoms, the right to choose our own medical services.

    39. Roger S., Ma. says:

      "harleyj", good buddy, I think you're projecting — and gloating rather severely and inappropriately, I might add. Your language is revealing: "…our Democratic Republic…"? (capitals mine) How's that again?!

      German Democratic Republic …. bankrupt! (Didn't take long.)

      Democratic Republic of the Congo …. bankrupt!(Never solvent.)

      Democratic Republics, a world full of them, all …. bankrupt!

      "Democratic Republics", so far as not officially bankrupt, all struggling along with help from the IMF — funded by guess who?

      There is nothing, absolutely nothing, nor has there ever been anything, in our Constitution to which proper adherence precluded or would ever preclude the establishment of a highly urbanized, modern, technological civilization of global influence and leadership with abundance for all. — The proof? Just look around you! And this, despite the "beatings" which it repeatedly took, not because of them! Which country or civilization in the history of all mankind has ever come close?

      So, adding myself to "…one of the pseudo intellects who opine in this blog…", let me say this: There are among us those who do not rely, nor wish to rely, upon our neighbors to provide our values, or for our values, be they spiritual, intellectual,

      or material. Among us are also those who have no desire to impose our values upon our neighbors, nor will we tolerate them imposing theirs upon us.

      We are precisely those individuals, rugged or soft, by and for whom the Constitution was created. We are those who did not dream of a government to provide for us, but who dreamed of and risked everything to provide for us a government — we could live with, instead of against — a government playing win-win, not one playing win-lose. We are the ones who used our intellect to help us envision such a government, to devise laws for a Constitutional Federal Republic to define its scope. We are the ones who knew in advance that it would work to our benefit, not for our loss, to our advantage, not ruin!

      We are the ones who actually made it happen, a civilization to be the envy of all. The proof ? Listen around you and hear how the world maligns us for … what? Being wealthy ? Being able ? Being ambitious ? Being industrious? Being patriotic? Being skillful? You bet! More than all the rest combined! Should we apologize? Again, for what? For having given more to the world in the last 50 years alone, than all past civilizations put together?

      We were the ones who refused, in the end, to "beg" our king to respect our "rights of man". We are now the ones who refuse to beg from a world full of beggars our right to exist. We are the ones who in the future will continue to refuse to beg for the right to live by these principles once so courageously embodied in and empowered by the terms of our Constitution!

      We are, rest assured, most unashamed to use the mind given us by "God, or nature's God". – It is quite a good mind for informing us that "democratic republics" aren't worth the first false note of their anthems. You may bank on that!

    40. Lynn B. DeSpain says:

      No. No. And Hell no.


    41. Jim Ford, Lincoln, N says:

      I've been asking this same question. Great explanation!

      Also, the Constitution does not guarantee or require the Federal government to provide food, clothing and shelter for anyone. These are more basic needs than health care.

    42. Pingback: Garden State Patriot | On The Constitutionality Of Nationalized Healthcare

    43. Marshall Hill MI. says:

      Silence is Consent!

    44. P.H., Oregon says:

      I've been discussing this elsewhere over the last few days and have found more than one basis for the belief that health care is a right.

      The "welfare" (ie; happiness, health, prosperity) clause has been brought up several times. But to say that the right to health care isn't in the constitution itself and therefore not a right would not hold water. Marriage, education, absolute freedom of speech and the press, and many other things aren't in there, either. Yet we consider them a right nonetheless.

      We could also bring up FDR's Economic Bill of Rights, sometimes referred to as the "Second Bill of Rights." which includes; "The right to adequate medical care and the opportunity to achieve and enjoy good health".

      Or Article 25 of the Universal Declaration of Human Rights (UN declaration which the U.S. signed.)

      "Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control."

      It also states; "The Declaration represents a contract between governments and their peoples, who have a right to demand that this document be respected."

      Or the International Covenant on Economic, Social and Cultural Rights: In October of 1977 the U.S. signed the International Covenant on Economic, Social and Cultural Rights. It was ratified it on Oct 21, 1994. This document recognizes:

      "The right of everyone to the enjoyment of the highest available standard of physical and mental health. [to be implemented by] the creation of conditions which would assure to all, medical service and medical attention in the event of sickness."

      There's a lot out there in the form of documents that the U.S. has created or signed that reflect a belief that health care is a right.

    45. Kevin, North Carolin says:

      Now, harleyj made some very good points, but there was some flawed reasoning. It is true that there is a need to change the ideas of the Constitution from time to time, and it is for that exact reason that the Framers set up the Amendment process. However, the words as they are written, mean exactly what they say. The Constitution is the "rules" of our Government. To say it is open to interpretation would be similar to saying the rules of anything else was open to interpretation. For example, you are allowed 3 strikes in baseball. There is no interpretation, it is three and only three, not four, and you won't be out after just two. Finally, the idea of judicial review is nowhere in the Constitution. The Supreme Court under John Jay invented this power for itself. Now, I do admit that the Left generally allows for this (Congress doing whatever it pleases, FDR interning Americans based on race) imagine what would happen if Bush had arbitrarily assigned himself extra powers.

    46. Cathy, Colorado says:

      Just because we have had moron legislators in Congress who signed treaties with the U.N. doesn't make it Constitutional. In fact, I signing anything with the U.N. is probably unconstitutional…and that organization has no place in our nation. BTW, you mentioned marriage as a "right"…it isn't up to the government to provide me with bridesmaid dresses, a wedding gown, subsidized payment to the priest or pastor, or taxpayer funded transportation to the church. However, if you want to kill your child before he's born, it has become your (un)constitutional right and the American taxpayers are going to have to pay for it one way or another. We have a lot of idiots in charge of this country who are more than happy to flush our nation down the drain. It's time to take back the Republic of these United States of America!

    47. Billy says:

      WOW! your website have the great information aboutinsuranceI'm sure I will be again.

    48. JAS, Atlanta says:

      Yes, Jim (WI), Democracies on average only last about 200 years.

    49. Roland -- St. George says:

      PH – I could not agree more. Thank you for being the voice of reason. For the US not to provide every citizen with basic health care is nothing short of hypocrisy. We need not take away the rights of doctors to practice medicine for profit if they choose; however, a public system is not only a necessity, but as you pointed out, a right…which the US fully signed an agreement to on two separate occasions, with the whole world watching.

    50. Jerry from Chicago says:

      Unfortunately, the Constitution is yet another document that Mr.Obama and his Congressional majority haven't bothered to read.

    51. Mike, Wichita Falls says:

      For those who think healthcare is a "right", consider the following:

      1) Why demand that the federal government via your fellow taxpayer fund it? Why not fund it yourself? Help your neighbor struggling to pay their healthcare bills. Give to that charity that helps seniors pay for prescriptions. Donate to cancer, alzheimers and heart disease research centers. Put YOUR money where your mouth is.

      2) Just because healthcare is a "right" doesn't mean the federal government should fund it. Are gun owners asking Uncle Sam for a public option on guns? Are newspapers asking for…oops, bad example.

      3) Where the U.S. Consitution is silent, the states are free to experiment (10th Amendment)…and they have. Heritage has written on some state healthcare programs such as Tennessee's TennCare system. Let the states work out the "bugs" of universal healthcare.

    52. Roger S., Ma. says:

      Roland: "P.H." , despite your agreement, is wrong, and is most decidedly NOT "the voice of reason", if for no other reason than to be that, he would first have had to learn to reason before he wrote, and done his homework!

      –The "general welfare" clause is trotted out all the time by all kinds of folk to demand all kinds of entitlements. If it's interpreted even more broadly than today (so far it hasn't) we might as well pack it in and join Russia, China, or India. I'll wager a month's pay you'll be the first to complain.

      –"Marriage, education, freedom of the press..", etc.? Some of these are common law rights existing prior to the Constitution, others were created by poor legislation and equally poor adjudication (O.W.Holmes, a common law expert morphed into SC-justice by presidential push — like someone else we just were treated to an overdose of — comes to mind.), and are of equally questionable constitutional legality as the newest Health-Care initiative. Their long standing has so far saved them from attack, but now that the country's ever more bankrupt, who knows…

      –FDR was, economically viewed, the worst president this country ever had. WW2 was what saved him from having his big brass "you-know-whatsis" kicked worse than happened anyway on his "Economic Bill of Rights", a "stolen concept" if ever there was one. Don't know what that is? Go look it up on wiki and then "reason" for yourself why "Economic" can't be a part of "Bill of Rights" because at least one of its provisions would have to be violated. (Geez! Can't "spoon-feed" you lefties everything all the time!) Moreover, the Economic Bill of Rights, if fully implemented, would have become a 14th Amendment, "Equal Protection" issue, in that it necessarily discriminates for or against certain classes of people by government definition and fiat.

      –To paraphrase "Cathy, Colorado", just because we have had some moron congresspersons ratifying treaties presumably signed by some similarly moronic and self-important former president, these do not automatically become United States law.

      –Unless these treaties were self-ratifying (rare) or their ratification coupled to specific legislation passed by Congress to implement their provisions in full or in part, they are not binding upon the States. (10th Amendment)

      –Moreover, slavery was abolished finally with the 13th Amendment.

      –Everyone has all the rights of this world to enjoy the finest health-care provided by some of the finest medical practitioners and organizations world wide, just not at his neighbors' expense.

      –No treaty signed anywhere by anybody is capable of repealing the 13th Amendment. Only another amendment could do that. Fat chance you'll be getting that any time soon, and if and when you do, guess who I, for example, will be coming to "enslave". Need I say more?

      –Now tell me, Roland, how's any of this hypocritical? Tell me what treaty gives my government the right to enslave me or any part of me? If there is, by some perverted chance, would you want to be my "driver"? Sure? Why not?

      –Remember: "Democratic Republics" aren't worth the first false note of their anthem.

    53. Ann, North Carolina says:

      Well, does the constitution say anything about social security, medicare, or medcaid? If not, then why aren't you trying to reverse those while you are at it. Also, VA benefits and benefits for government workers – check to see if that is in there too. A lot of people seem to think that if you make more than you shouldn't have to pay more. That doesn't even make sense, if you make more then you pay more. There is nothing wrong with money, but we must grow it, manage it wisely, and give back. We must pay taxes, give back to God, and be good stewards of our wealth. To those whom much is given, much is expected! With great power comes great responsibility!Luke 12:48

    54. Pingback: Health Insurance is Not Like Auto Insurance | Right Wing News

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    56. Reason at Will says:

      The problem is with the General Welfare clause. While yes, it's true that this limits Congress's power and scope in terms of the laws it can pass, all it means is that one must prove that concept in question is necessary for the 'general welfare' of the United States.

      And, at least in my mind, doing so for health insurance doesn't seem to be that difficult, for better or ill.

    57. Pingback: New State Gov’t Tactic: Banning Insurance Mandate &laquo Publius Forum

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    59. Scott, Upstate NY says:

      Does the Constitution give the Federal Government the authority to create the FAA and run the Air Traffic Control System, NO! Come to think of it, the word airplane does not appear in the Constitution.

      The Commerce Clause could be used to justify Federal oversight of flights from state to state, but not a flight from Houston to Dallas. All flights that are within a state must be handled by the state air traffic control system.

      Sorry, I have to go. I'm on my way to a tea party at the airport demanding that my tax dollars stop funding the FAA.

    60. Diane, Washington D. says:

      Constitutional law is much more complicated than all of you would make it out to be. Take a semester of it before you start blabbing about what powers you think Congress does/does not have. -Lawyer

    61. Pingback: A Thin Reid: How Not to Appeal to the Founders | Conservative Principles Now

    62. Sam, Chicago, IL says:

      I believe at least the republicans and those opposed would kick it to the Supreme Court on constitutional merits which does have the power to strike the requirement clause in it.

    63. Pingback: DeMint And Ensign Look To Right-Wing Think Tanks Rather Than Judges To Interpret The Constitution | No Bull. news service.

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    66. Carrie Taylor says:

      Can you tell me how does an American citizen file a claim that the New Health Care bill is unconstitutional also, is it not illegal for congress and the president to use tax payers money to bribe and give favors to get votes to pass a bill? Who protects the American People from criminals in our government?

    67. Pingback: The Use and Abuse of the Founders: The Individual Mandate is Still Unprecedented and Unconstitutional | Fix Health Care Policy

    68. Julia Miller, Northr says:

      Your article was very informative, especially with respect to the commerce clause.

      I for the life of me could not understand when this was being argued on television or radio for that matter, how the commerce clause was applicable to this bill and now law.

      It is my hope that this bill/law will now be struck down as being unconstitutional and that it will bar this type of action by a congress that no longer listens to the people but passes laws at will, despite the objections of the people that have sent them there as representatives. I have email all of my friends and associates and have directed them to this site to learn more about this debate and also about the Constitution. Thank you.

    69. Eric Morisch, Enid O says:

      “If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions.” – James Madison

      Our government has become an indefinite one, under the progressive view, entitled to develop all and any number of programs for the "General Welfare" by fiat, "subject to particular exceptions."

      This doesn't change the fact that our government was meant to be limited and federal in nature, with the States holding most of the authority. I accept the argument that government must be able to change over time, but major changes in the central U.S. government should have come legally through the Amendment process. Most of the programs/edicts handed down from the U.S. government in the last several decades has been done with great political expediency. Anything done with political expediency generally does not involve prudence in governance. I am guessing there was likely very little national debate on SS or Medicare that affected the decisions of Congress generally, not that I would know. I was born in 1987.

      Agencies like the FDA, the FCC, the FBI… There are merits to these agencies and the regulations and laws they enforce, but we have over 1000 different Federal-level agencies regulating all different sectors of our economy and our lives. The good Lord knows what those who founded our government would think about said government presently, but all we have in references are now over 200 years old. We're still stuck with the age-old question of "What is best for today?"

      I have a little insight for what definitely isn't "good" policy. Continually running up the debt and not "reforming(see REFORM versus CHANGE)" the spending programs, specifically Medicare, SS, and Medicaid that are pushing larger budgets and pushing us further towards insolvency as a nation. We continue to add more entitlements and higher taxes, but many of these programs don't have set budgets.

      The more centralized that government is, the less effective it becomes. The U.S. government cannot possibly know what is best for citizens in Nowhere, Kansas, Oklahoma City, Oklahoma, and , Wyoming. It simply cannot, with many one-size-fits-all programs, best serve the needs of the constituencies of all 50 States.

      No reasonable person should say that programs like SS and Medicare can't or should not exist in one form or another, but establishing them at the federal level was and continues to be debatable on whether or not they truly serve the "General Welfare" of the entire nation suitably.

      Establishing everything authoritarian style top-down from the level of the federal government completely destroys the concept of federalism. When the U.S. issues a governmental mandate, everyone in the U.S. must comply. When a State issues a mandate, only the citizens of that State are affected. When a locality/town/city issues a mandate, only the individuals residing within that locality are affected. When the U.S. government is no longer truly limited in scope, its abuses(policies) affect the whole polity of the States, regardless of whether or not one may agree with said abuses(policies).

      For example, I'm not particularly thrilled that the U.S. government will in the next several years have the gumption to tell me I must purchase government-approved health care insurance against my will or be fined. If Oklahoma was considering such a mandate, and Kansas was not, I could vote with my feet and move to Kansas, or any other State that supports my more conservative ideals of how government should handle the regulation of health care in this country.

      With the U.S. government, I do not have that option. In order to "escape" such a mandate, I'd have to leave the country; There aren't many countries that haven't imposed some sort of social universal health care plan where I would enjoy living.

      The argument about imposing one's "Ideals" on another person goes both ways, and the U.S. government is a great vehicle for imposing misery upon the citizens of the United States. Just because I support a more limited, narrowly Constitutional government doesn't mean you wouldn't have the right to live in a State or locality where your ideals of government could be in full force.

      Also, I suggest taking a look at different cities where liberal Democrats have been governing for decades. I suggest Pittsburgh, Chicago, and Detroit. Have a nice day. :)

    70. Harley Spoon says:

      When I read in the Constitution words as follows, "…provide for…the general welfare" in the context of the "health and "welfare" of the nation, I see a power available to congress to legislate that which provides measures vital to the health and well-being, and, thus, the "general welfare" of the American people. If the health and well-being of the American people doesn't qualify as an aspect of the "general welfare", what does? I see nothing in that clause or any other clause in the Constitution saying congress must provide for or allow for the obscene profitability and exorbitant wealth–to the detriment of the "general welfare"–of the moguls in insurance.

      Someone mentioned Edith Hamilton's statement in SPOKESMEN FOR GOD which implies that "intellectual certainty is the end of knowledge". That profound statement applies, it seems to me, to anyone who is caught up in rigid and unyielding ideological dogma and doctrine on either side(s) of an issue to the point where he or she no longer feels compelled to contemplate further interpretations. Hamilton's statement cuts both ways in that it hits liberals, conservative, pragmatists, reactionaries and radicals with its brilliant blade…equally!

      Knowledge is, as is the universe, in constant flux and dynamic change; so is the Constitution…as intended by the FOUNDERS OF THIS NATION AND THE FRAMERS OF THE CONSTITUTION. That is why they provided for amending the Constitution and for "Judicial Review" among other means by which to allow the Constitution to attend to changes of circumstances of society. Thank God and the Founders that we have mechanisms available in the Constitution to interpret and allow the application the provisions of the constitution in the context of real time.

      The point is that the writer of the above article does not interpret the Constitution for us–unless he/she is on the Supreme Court. Neither do any of us–unless we are on the Supreme Court–interpret it for him. That is a task left to the Supreme Court as it is made at a given time. The writer can opine as to the interpretations made by the congress and the courts but that is all he/she can do…thankfully!

    71. Harley Spoon says:

      I realize that Thomas Jefferson has fallen from grace among the right wing ideologues in the US today–as evidenced by the actions of the Texas State Board of Education lately when they equate Phyllis Schlafley to Thomas Jefferson in the history textbooks of Texas schools. Nevertheless, he said the following–which was, in 1810, and still is pertinent:

      Panel four (on the Jefferson Memorial in Washington, D.C.)

      "I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors."

      Original Passage:

      "I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the same coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors."

      – to Samuel Kercheval, July 12, 1810


      Pictured: Jefferson Memorial, Washington, D.C., courtesy National Park Service

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    73. Jimmy Olsen, Chicago says:

      I realize I’m late to the game here but it’s still worth mentioning that in 1994, the Heritage Foundation was in favor of universal coverage and the individual mandate. The Consumer Choice Health Security Act HR 3698 sponsored by the likes of Hastert, DeLay, Gingrich was based on Heritage policy papers. I tried to find those papers a while back but they were oddly missing from the website…There is, however a piece by Robert Moffit entitled “Personal Freedom, Responsibility, And Mandates” Isn’t it amazing how sound conservative thinking can become a constitutional nightmare in 16 short years?

      • Conn Carroll Conn Carroll says:

        We recently updated our website so any old links you have to past papers will not work. But they are still there. For example, a 5 second search turned up this 1993 Heritage paper advocating for an individual mandate: http://www.heritage.org/Research/Lecture/Why-Cons
        Notice, though, that there is no legal or constitutional analysis in the paper.
        Also, facts on the ground since 1993 in states like Massachusetts have shown that the mandate is a policy failure.
        When the facts change, conservatives change their minds. What do you do?

    74. tim montana says:

      One has to remember that Obama (on the Thursday before the election) said "the contstitution is an impediment to the things we have to do". First I wonder who is "we", and then I would like to know what does "what things" mean. The constitution is not important to this president and most other far left libs. I even think that most house and senate repubs and dems have allowed or contributed to chipping away at the cosititution for so long it will take a big big switch that only tea party candidates can provide to bring some change we can believe in.

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