Is the Health Care Bill Constitutional?

Asking if the Health Care bill, recently passed by the House of Representatives, by the narrowest of margins, is constitutional, is like asking “Does the Bible say that God created both Adam and Eve in his image?”  No matter how much you may desire to promote the equality of women in the cosmic scheme of things, the answer to this question is NO! 

The Bible tells us that God made Adam first and because Adam was presumably lonely, he made a companion for him from Adam’s rib.  So, Eve was essentially made in Adam’s image, that is to say, she was a poorly cloned copy of Adam, and by inference, of God.

Likewise, no matter how much you may wish to promote the equality of opportunity for all people to have affordable health care coverage, the Constitution does not give the Federal government the power to require  that everyone purchase health care insurance in order to insure that there is “social justice” while each person carries his/her fair share of this “tax burden.”  And, the way the bill is structured, it really is a health care “tax” that we will be coerced into paying, whether we wish to buy the proffered insurance or not.

The health care legislation crafted and pushed through the House by the Democratic majority is based on a Constitutional interpretation that creates, as in the purported creation of Eve by God, a very poorly cloned image of the Constitution as it was carefully and arduously crafted by the Founding Fathers.  This cloning error is cogently revealed in a very careful analysis of the “General Welfare” Clause of Article 1 of the Constitution by the respected Constitutional scholar, Robert Natelson, a professor of law at the University of Montana.

Congress, following key Supreme Court decisions that have imperfectly cloned the original Constitution, and proceeding, as  if it were operating appropriately within the limitations of the original document, has basically assumed carte blanche power to control and regulate whatever it chooses for whatever purpose.

The Democrats, when confronted with the constitutionality of federal health care reform, typically resort to justifications deriving from the presumed power given to Congress in the “General Welfare Clause.”

Prof. Natelson’s aforementioned paper shows the invalidity of such justifications.  In an excellent, scholarly work, he looks at the evidence as to the intent of the Founders from two perspectives.  One is the perspective of Textual Analysis.

Textual analysis is defined as:

“Using specific evidence from a text to rationalize a claim made about the text.  More specifically, textual analysis weighs and considers the meaning of individual words and phrases in an effort to discern the intentions of a poet or author.”

There are a number of "textual difficulties," according to Natelson, "involved in construing 'to pay the Debts and provide for the common Defence and general Welfare' as an affirmative grant of power" given to Congress. I shall only highlight a few examples.  He points, out, for instance, that:

Several items in the Article I, Section 8 enumeration are powers that rather clearly anticipate congressional spending, especially when coupled with the Necessary and Proper Clause.  If the words 'to provide for the common Defence and general Welfare' give Congress power to spend money on the common defense, there is no need for a separate clause authorizing Congress to 'support Armies,' [to] 'maintain a Navy,' purchase 'Forts, Magazines, [and] Arsenals,' or 'punish Piracies and Felonies committed on the high seas--all of which Congress could do under the General Welfare Clause.  Similarly, if the General Welfare Clause grants an independent, largely unqualified domestic spending power, then there is no need for separate grants of spending authority to 'establish Post Offices and Post Roads,' 'constitute tribunals inferior to the Supreme Court,' or purchase 'dock-Yards, and other needful Buildings.' "

He also calls attention to another difficulty revealed by textual analysis.  This difficulty…

…can be understood through knowing the subtle, but interpretively critical, differences between modern and eighteenth century English:  one might argue that the verb "to pay" suggest and immediate power of payment--hence, a spending power.  However, the Clause states that taxes will be levied "to pay the Debts" but “to provide for" (not "pay for") the common defense and general welfare.  The significance of the change of verbs seems to have been lost on courts and commentators unfamiliar with the founding generation's Latinate English.

Today, we usually employ the verb "provide to mean "to give," as in "she provided him with cash."  That was not the usual way the term was used in the eighteenth century.  Then, the term usually had aspect of futurity in it suggested by its Latin forbear, providere, meaning to look ahead or predict--and still captured in the modern English term "provision," as in "he is making provision for the future."  In Samuel Johnson's Dictionary of 1755, the first definition of "to provide" is "[t]o procure beforehand; to get ready; to prepare.  Although something closer to the modern usage appears in a secondary meaning, this was notably not true of the specific phrase employed in the Constitution--"to provide for."  That meaning was always one of making provision for the future, as “[t]o take care of beforehand" or "to provide for the coming winter."

....Whenever the verb "to provide" appears in the Constitution, it embodies an element of futurity inconsistent with immediate spending or appropriation....The verb "pay" was used , not for future debts arising under the Constitution, but for debts already incurred by the Confederation.

Natelson concludes after many more detailed analyses that…

…the best textual interpretation is that the General Welfare Clause limits the purposes for which taxes can be levied.

Then, he turns to the history of the adoption of the Constitution

…to see whether it corroborates or conflicts with textual analysis, and if it corroborates textual analysis, to determine the nature of the limitation imposed.

I shall give only two of a great many issues and facts which Natelson reviews.  The first example, however, overlaps with textual analysis.  He writes:

It may be significant that Alexander Hamilton's proposed frame of government--the ony proposal to grant Congress plenary [absolute] authority--did not include "general welfare" language.  The reason is simple: words of limitation did not belong in a proposal that would empower Congress to "pass all laws whatsoever."  Hamilton wanted the national legislature to have power to legislate on matters of local and private as well as general welfare.

This brings up the issue of “general” vs. “local” welfare.  Natelson demonstrates that the use of the term, General Welfare” in the Constitution is intended to refer not to the individual welfare of citizens, as many politicians today presume, but, instead, to the general welfare of the federal government in contrast to the welfare of the states, i.e., states’ rights.

After discussing the historical material relating to ratification of the Constitution, Natelson concludes:

In summary, the ratification debates support the conclusion that the General Welfare Clause grants no independent authority to Congress, to spend or otherwise.

Professor Natelson then concludes with the following:

The current Supreme Court interpretation, the Hamilton-Story view, stands the original meaning of the General Welfare Clause on its head.  The Clause was not a qualified grant of spending authority, as Hamilton and Story claimed.  Nor did it merely point to other powers, as Story understood Madison to have said.  On the contrary, the General Welfare Clause was an unqualified denial of spending authority.  It did not add to federal powers; it subtracted from them. [Emphasis added].

[Note:  Joseph Story (September 18, 1779 – September 10, 1845) was an American lawyer and jurist who served on the Supreme Court of the United States from 1811 to 1845.  He is best known for his Commentaries on the Constitution of the United States (3 vols., 1833).]

Interestingly, it seems that the general public has recovered from the “Yes we can” mantra of the 2006-2008 election years and  is not buying the constitutionality of the proposed, government-run health care program either.  A recent Gallup Poll suggests that:

More Americans now say it is not the federal government's responsibility to make sure all Americans have healthcare coverage (50%) than say it is (47%). This is a first since Gallup began tracking this question, and a significant shift from as recently as three years ago, when two-thirds said ensuring healthcare coverage was the government's responsibility.