ObamaCare and the Constitution: What Would Jefferson and Madison Think?

By Tucker, Nathan | The Christian Science Monitor, April 27, 2010 | Go to article overview
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ObamaCare and the Constitution: What Would Jefferson and Madison Think?


Tucker, Nathan, The Christian Science Monitor


A careful reading of the US Constitution shows no authority for the new health-care law's mandate to buy private insurance.

When asked last fall where the Constitution authorizes Congress to require citizens to buy health insurance, House Speaker Nancy Pelosi was temporarily caught off guard, finally sputtering, "Are you serious? Are you serious?" She then quickly turned to another reporter without further comment.

Another Democrat, Rep. Phil Hare of Illinois, reacted similarly when recently posed that question by one of his constituents: "I don't really worry about the Constitution on this, to be honest."

While the thought that the Constitution actually limits the power of Congress to enact legislation may be foreign to some Democrats, the framers of the Constitution intended for the federal government to be limited to the powers that are specifically enumerated, or listed, in the text of the document.

In the Federalist Papers, James Madison wrote: "[T]he proposed Government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects."

In part to protect that sovereignty, more than 20 states have challenged the constitutionality of the new federal health-care law. Several have even moved to pass amendments to their constitutions that would forbid any law that forces citizens to participate in a health-care system.

The outcome of these radical efforts to affirm the guaranteed rights of states and individuals will have huge consequences for the very character of America.

Key constraint: enumerated powers

Because the federal government is composed of - and constrained by - enumerated powers, then the power to regulate health care would have to be one of the powers specifically given to it in the Constitution.

Out of the 17 named powers given to Congress in Section 8 of Article 1, however, none mentions anything about heath care, insurance, doctors, medical treatment, or anything approaching an enumerated power that would allow Congress to legislate our health.

Then how is it that Democrats can claim the Constitution permits the new health-care law? They point to two constitutional provisions as their grant of authority to enact health-care legislation.

The first enumerated power claimed by Democrats is the "general welfare" clause. House majority leader Steny Hoyer, for instance, said that Congress has "broad authority" to provide for the general welfare. The term "general welfare" appears twice in the Constitution, once in the Preamble and another time in the "tax and spend" clause.

The Preamble to the Constitution, however, has never been considered a grant of power to the federal government. As the Supreme Court has put it, "[a]lthough th[e] preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the government of the United States."

The tax and spend clause, however, is an enumerated power given to Congress in the Constitution. It reads in part, "[T]he Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States."

To read the term "general welfare" in the clause to be a broad grant of authority to Congress to tax for whatever purposes it deems are in the general welfare of the country would be to make a mockery of the Constitution.

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