November 22, 2009
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November 11, 2009

To Hell with the Constitution?

By Jon N. Hall
Much has been made recently of the unconstitutionality of federal health care reform, especially a government-run system (the "public option") that could devolve into a "single-payer" system. The main objection is that the federal government has no authority to operate a health care system. Indeed, the 9th and 10th Amendments forbid it, according to Larrey Anderson of American Thinker.

In The Wall Street Journal, Judge Andrew Napolitano writes that Congress has been getting around such constitutional bans by invoking its Commerce Clause, "the favorite hook on which Congress hangs its hat in order to justify the regulation of anything it wants to control." Perhaps the most outrageous abuse of this tiny clause is the case of Wickard v. Filburn (1942), where the Supreme Court cited the Commerce Clause in denying a man the right to cultivate his own land for the purpose of feeding his family.

Judge Napolitano deems ObamaCare "unconstitutional at its core".

Besides the systemic ban, a key component of ObamaCare may also run afoul of the Constitution. The "individual mandate" for citizens to buy health insurance seems to violate the 14th Amendment's Equal Protection Clause. In The Washington Post, attorneys David Rivkin and Lee Casey assert:
The otherwise uninsured would be required to buy coverage...for no other reason than that people without health insurance exist. The federal government does not have the power to regulate Americans simply because they are there.
During last year's campaign, I made this "existential" argument myself, comparing the "individual mandate" to poll taxes. In Harper v. Virginia Bd. of Elections (1966), which struck down poll taxes in Virginia, Justice Douglas delivered the Court's opinion:
Long ago in Yick Wo v. Hopkins ... the Court referred to "the political franchise of voting" as a "fundamental political right, because preservative of all rights." ... fee paying has, in our view, no relation to voting qualifications; the right to vote is too precious, too fundamental to be so burdened or conditioned.
Is not the right to exist even more "fundamental" than the right to vote? Isn't existence a precondition of "all rights"? Yet this is what the "individual mandate" taxes: existence. In the Wall Street Journal, Rivkin and Casey write:
But if over time, as many critics fear, a "public option" health insurance plan turns into what amounts to a single-payer system, the constitutional issues regarding treatment and reimbursement decisions will be manifold...The only thing that is certain today is that the courts, and not Congress, will have the last word.
In her coverage of the November 5 rally on Capitol Hill and attorney Mark Levin's impassioned speech to the assembled throng (great video of it in the link), Penny Starr reports:
Both the House and Senate versions of the health-care reform bill would force all individuals who are citizens or legal residents of the United States to buy health insurance or else pay a fine, even though the Congressional Budget Office has reported that the federal government has never before required Americans to buy any good or service. Sen. Orrin Hatch (R.-Utah), a longtime member of the Senate Judiciary Committee, told CNSNews.com recently that this mandate is not constitutionally justifiable and that if Congress can force Americans to buy health insurance "then there's literally nothing the federal government can't force us to do" [emphasis added].
America once made the required nod to the Constitution. When We the People wanted to make some fundamental change or expand the federal government's reach, we did the right thing and amended the Constitution.

The Constitution has 27 amendments, and 12 of those amendments came within the last century. One of those 12 amendments (#18) was repealed by a later amendment (#21). If we once thought that we had to amend the Constitution to ban "intoxicating liquors" and later had to again amend the Constitution to re-legalize the stuff, wouldn't we need an amendment to allow the government to intrude even more intimately into our lives?

But the amendment process is arduous (the 27th Amendment took 203 years to ratify). And there's no guarantee the states will go along (the Equal Rights Amendment failed). So Congress goes its merry way, the Constitution be damned.

But now Congress is ramming through their abortion of a bill by the thinnest of majorities. The House just passed its version 220 to 215 -- a 3-vote margin to pass the "mother of all entitlements." The Senate is considering its options, among them the "nuclear option" (called "reconciliation"), which would allow them to get around a filibuster.

If Congress were to do the right thing and initiate an amendment to enshrine the "individual mandate" in the Constitution...it would fail miserably. If America is still America, Americans will not tolerate being told they have to buy something, especially if it's for no other reason than that they exist. If ObamaCare becomes law, folks will drop their insurance out of principle. They'll file suits against the feds. The states will resist, perhaps rebel. And great will be the tumult thereof.

I'm afraid Congress has not only misread the Constitution, but they've also misjudged the American people. Or maybe they just don't know what country they live in.

Jon N. Hall is a programmer/analyst from Kansas City.
on "To Hell with the Constitution?"
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