Posts Tagged ‘constitution’

As you know, this blog has explored several ways whereby the proposed mandate that everyone obtain health insurance is unconstitutional.  Ignoring entirely the advice of this blog, the Senate Finance Committee reported out a bill that included a mandate, albeit a watered-down one.  In fact, it appears that any bill that will be voted on by Congress this fall will contain a mandate for individuals to obtain health insurance.  This begs the question – if a health insurance mandate is passed and signed by the President, what does it really matter?  Sure, Congress has pushed the envelope of constitutionality in the past, and rarely has it been struck down.  But isn’t this just an academic debate among legal eggheads?

Sadly, the answer is no.  Passing an unconstitutional health care mandate can only poison American politics, whether it survives a court challenge or not.  Let me explain why.

Nightmare Scenario I:  A Health Care Mandate Withstands Court Scrutiny

American jurisprudence is essentially a process of accretion. Accretion is a word used more frequently in geology, describing the layering of rock over the ages.  Imagine yourself standing on the edge of the Grand Canyon, staring at the wondrously colorful scene.  You see before you the dozens of layers of soil, rock, and sand that have been laid down, one upon the other, over centuries.  At the time each layer was established, those who were there to see it knew only of the layer being created, or of the layer beneath.  With a little work, they could dig slightly deeper to see one or two layers below that.  But they stood on all the layers that went before them, even if they never saw them.  They may have heard stories of them, or seen pictures, but they could not truly know the deepest rock upon which they stood.  And the same goes for you — though you stand on the top of all the layers laid bare by the Canyon, walk away and you will know only the rocks of yesterday, and the soils of today.

So it is with the law.  We like to think of philosophies like originalism and natural law as a harkening back to the way things used to be, but in many ways that’s not correct.  No serious legal thinker today advocates a return of U.S. law to the way it was at the time of our founding.  Sure, the concepts of checks and balances, separation of powers, federalism, and limited government spring from the constitutional well, and we would be wise to drink from it more often.  But while James Madison did not preconceive the Federal Communications Commission, he also couldn’t conceive of the telephone.  Jefferson’s dream of an agrarian society did not include ConAgra or ADM.  And while Lincoln’s vision for America included a transcontinental railroad stretching across the frontier, his imagination could not stretch as far as the moonshot at the center of JFK’s New Frontier.  This isn’t a pitch for a “living constitution,” but it is a recognition that the very things we consider America’s greatest achievements have always forced America’s political leaders to adjust the structure of our government to fit the circumstances.


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In an earlier post, I explored whether the Obama health insurance mandate was constitutional in a positive sense — is the federal government empowered to take this action?  But through the very interesting debate that resulted from that post, it occurred to me that there is a second question that needs to be asked.  Does the Constitution affirmatively prohibit such a mandate?

The Thirteenth Amendment to the Constitution is one of the simplest and most morally-defensible principles in our charter:

Section 1.  Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2.  Congress shall have the power to enforce this article by appropriate legislation.

Pretty easy thing to avoid, no?  No American shall be forced against her will to serve another.

As an initial matter, let me be clear – I am in no way suggesting that the severity, cruelty, and horror of human slavery is comparable to the relatively-minimal cost of the health insurance mandate on most Americans.  What I am comparing is a principle, and it’s the principle that is prohibited in the Thirteenth Amendment.  At an elemental level, the two practices are the same.

In the form of slavery practiced in the United States in the 19th Century, a man was born or brought into this country with an obligation to serve another.  His service demanded that he expend at least some, if not all, of his energies, time, and labor on the tasks he was given by his master.  In exchange, he was usually given the basic needs for human survival – food, clothing, shelter – but not much more.  If he failed in his duty, the law allowed him to be punished.  If he fled that obligation, the government would hunt him down and force him to return to servitude.  The man could do nothing to pay his debt or satisfy his obligation – he was bound for life.

Consider, now, what Obama’s health care mandate requires you to do.

You must, from the day you become a citizen of the United States, labor to earn money to pay a health insurance company.  In return, you are given a promise to pay for most health care services you require.  You are coerced to remain in this relationship under penalty of law.

If you become unable to work, you must still seek health insurance from the government (if you are poor, from Medicaid) or spend your savings on health insurance (for those who are not poor).  If you fail to do so, you will be punished by the government.  If you lose your job, you have no liberty to choose to forego health insurance to pay your mortgage, or buy food for your family, or keep your daughter in college.  If you fail to keep your health insurance, you are a criminal.

This obligation begins, for most of us, on the day we are born.  Most children will be covered on their parents’ policy, but their parents will immediately be forced to work harder to pay their children’s legally-enforceable debt.  If the parents stop paying, not only will the parents be liable, but so will the children.  An infant without health insurance will be a fugitive from justice.

When we grow up and become independent (if not sooner), we will be expected to lift the yoke of health insurance off the shoulders of our parents and begin paying for it ourselves.  Nevermind that this might happen in our teens, or that we’ll be lucky to pay for pizza delivery to our freshman dorms — the government will demand that you pay for your health insurance first.

If you have a conscience-based objection to the insurance required by the government, you cannot follow your conscience and forego coverage.  If you can’t stand the idea of purchasing insurance that covers abortion, you will be punished by the law.  If you think a man should stand on his own two feet and refuse to accept “welfare” like Medicaid, you must spend your last dollar on health care or face indictment.

If a health insurer sees that you have stopped paying your premiums, he has a vested interest in snitching to the government, hoping that the threat of law enforcement will get you to start paying again. If the threat isn’t enough, the government can act to force you to get insured or lose your remaining liberty.

If you ever let your health insurance lapse and the government fines you, you’ll be forced to tell future employers that you have been convicted of a crime.  Even if you never used any health care during the lapse, your non-payment of premium is a criminal matter.

In short, under the Obama plan, you can never escape your health insurance masters – you can only choose which master you wish to serve.  If you ever lay down your shovel and try to walk away, your government overseer will find you, punish you, and put you back in line.


We are a society that is blessed in countless ways.  One of those blessings is a total ignorance of human bondage.  In other countries, marriages are enforced like servitudes.  In Africa and Southeast Asia, classic 19th Century slavery is still practiced and, to some degree, countenanced by the government.  Even in some Western democracies, citizens are forced into petty private obligations at the government’s whim, small sacrifices of liberty for the common good.

As much as we often decry the loss of freedom in the U.S., we are an astoundingly free people, particularly in the commercial arena.  We are allowed to organize our lives in innumerable ways, and the government largely stays out of the way.  One of those ways is health care.  Most of us go the easy way, taking the insurance offered at the office, muttering curses at the co-pays but largely happy with the care.  Some smaller percentage of us do other things, others take advantage of government programs, and a small but not insignificant group opt out of the insurance market altogether.  Does this liberty cost the nation?  Yes – all liberty does, because liberties imply the right to make mistakes.  But We the People decided some 232 years ago that the costs didn’t matter – we wanted freedom.  We fought the bloodiest war in American history to extend this freedom to everyone.  We endured decades more of strife and struggle to break the cords of bondage forever.

Surely – surely – our first black President isn’t about to be the first to sign into law an act of Congress that abridges the Thirteenth Amendment?


*this post used to be entitled “The Health Insurance Mandate: Is It Slavery?,” but some friends pointed out that involuntary servitude is the more precise term.

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The federal government has three ways it can obtain a law-abiding American’s property:

1.  It can tax you.  Taxation is the power of the government to force transfers of cash from owners to itself.  It is a broad power, expressly stated in the Constitution:

The 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 . . . .

Sometimes the government takes your cash on the basis of your income.  Sometimes the government takes your cash because you bought something, like cigarettes or gasoline. Sometimes the government takes your cash when you trade with other nations.   And sometimes the government takes your cash because you die.  But if the government taxes you, it is always the direct recipient of the money – at least for a moment, before it spends it.

2.  It can take your property (and pay you for it). Eminent domain is the power of government to force transfers of property from owners to itself or its designees.  A little-known fact — the power of eminent domain is not in the Constitution itself.  Rather, it was presumed by the Framers to be an inherent power of government, but one that needed to be controlled.  Thus, the Fifth Amendment prohibition on uncompensated takings:

No person shall…be deprived of life, liberty, or property, without due process of law, nor shall private property be taken for public use, without just compensation.

Here, the Framers were striking back at the abuses of the British government, which occasionally took private property for use by the Crown, without compensation.  And when the Fifth Amendment says “property,” it means the tangible stuff — your real estate, your tractor, your great aunt’s buffet, you name it — just not your money.  That only makes sense, because when it comes to the “just compensation,” unless the property owner agrees otherwise, it’s always going to come in the form of cash.

One small change in practice since the days of the Founders has been the designation of some limited private parties with the right of eminent domain.  In these cases, the government usually grants heavily-regulated companies (railroads, power companies, telecoms) with a limited right to exercise eminent domain in furtherance of a public utility.  But even in these cases, the private party must demonstrate that the taking is necessary for a public purpose; it can only take tangible property (not cash); and the taking must be justly compensated with cash.

3.  It can regulate your commerce (and take your cash in the process). Since the advent of the 20th century, Congress has done remarkable things through its Article I power to “regulate Commerce . . . among the several States. . . .”  It has regulated the financial markets, ensured the safety of foods and drugs, prohibited pollution, protected endangered species, and imposed workplace rules.  In each case, it requires a person or corporation performing a certain activity to perform it in a certain manner.  For example, if a mining company chooses to employ workers in mining, it has to properly train them and give them certain equipment necessary to do their jobs safely.  The government does not require anyone to actually mine — that is up to the company — but if it chooses to mine, it has to do it right.  Similarly, if a steel mill wants to operate, it has to get an air pollution permit.  That permit might require the company operating the mill to pay certain fees to the government, but only because it wants to operate.  If instead it shuts down the mill and didn’t doesn’t emit pollution, it doesn’t have to pay the fee.

Does this sound elementary?  Maybe so.  But if President Obama’s health care plan is enacted as described, it will attempt to create a fourth way for the federal government to take your property.  Let me explain why.

Our good friends at American Missive took aim at our President’s latest easy target: his claim that his “excise tax” on those who refuse to buy health care under his plan is not a tax.  Let’s look at his explanation:

Frankly, I agree with the President.  This is not a tax.  A tax requires a property owner to pay cash to the government to pay for public services or debt.  In this case, the only time the government gets cash is when it fines the individual for failing to obtain health insurance.  That’s not a tax — fines are an act of law enforcement.  Even if one gets fined here, he still has to pay a private party for health care.  So, President Obama, you’re right — this is not a tax.

So, one has to ask — which of the other two options is it?  Let’s take the easy one first — it’s definitely not an exercise of eminent domain.  Why is that an easy answer?  Because the transaction doesn’t involve tangible property.  Rather, Obama’s health care plan would require a private citizen to pay cash to a third party for a service (health insurance).  Now, the health insurance mandate does bear one similarity to the eminent domain option.  Only the eminent domain option allows government to invest a non-governmental entity with the ability to act in the public interest — the government can’t give private parties the right to tax or regulate.  But remember why the eminent domain option exists — to allow the government (or its designee) to obtain specific tangible property that it needs for public purposes.  That need isn’t in play here, so eminent domain is off the table.

So we’re left with Congress’ power to regulate interstate commerce.  To be sure, this power has been a carte blanche for Congress for almost 100 years now, so one might be tempted to end the analysis right here.  But even a broad-minded advocate of the Commerce Clause has to acknowledge that the health insurance mandate is entirely new territory.  Why?  Because it regulates a citizen’s existence, not her activity.

If you want to understand the outer limits of the Commerce Clause, it’s best to head to the wilderness.  Consider, for example, whether the proposed regulation would apply to a person who effectively opted out of all commercial activity, pitched his tent in the woods, caught or grew his own food, and did everything in his power to avoid the rest of humanity.  Obviously, such a person is not engaging in interstate commerce — he’s not engaging in commerce at all, in fact.  The closest he comes is when he kills his food (he might be shooting a spotted owl, after all), but that’s a debate for another day.  Regardless, our man in the wilderness is NOT consuming health care and driving up the costs for the rest of us.  But under the Obama plan, he would still be subject to a fine for failing to obtain health coverage.  Our man in the wilderness isn’t undertaking any activity, or availing himself of a privilege — he is surviving, plain and simple.  When Congress has attempted to criminalize activity that is inherently intrastate (as this man’s would be), the Supreme Court has struck down those regulations (U.S. v. Morrison; U.S. v. Lopez).

Consider three scenarios where Obama’s fine would apply.  We’ve already considered the first — the person who never seeks health care or insurance.  It’s impossible to conceive of how that individual might impact interstate commerce, but it’s also difficult to conceive of such an individual in today’s society.  So we move to the second example — the person who always pays cash for health care.  This was the model for health care payment as recently as fifty years ago.  Is it possible that such behavior — which creates no public debts, nor imposes higher costs on the insured — has such an irresistible impact on the health insurance industry that it can be subject to civil enforcement?  The third scenario goes to the individual who has health insurance, but not a plan that meets all the bells and whistles required by an Obama regime.  If a conservative Christian refuses to carry health insurance that covers abortion or contraceptive services for religious reasons, does her conscience-based alternative create consequences for interstate commerce?  She pays her premiums; she covers her co-pays; and yet her business transaction is one worthy of national regulation?

But this all ignores the more fundamental question: Can the federal government require a citizen to pay cash to a private party for services he does not wish to receive, and if he refuses, penalize him? Such an act would be unprecedented for the federal government.  It is so unprecedented that, to my knowledge, it has never been tested in the federal courts.  I would argue it’s never been tested because no prior Administration would ever argue it was possible.  It’s not taxation — the government isn’t getting the money.  It’s not eminent domain, because no tangible property is being exchanged.  And it’s not regulation of commerce, for the burdened citizen is not seeking to engage in the commercial transaction being regulated.  So what is it?

I’ll tell you what it is — it’s unconstitutional.

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With the cap-and-trade bill passing the House, Obama’s health care plan gaining heft (at least in pages, if not in votes), and our nation’s balance sheet spurting more red ink than a B-grade horror movie, it’s time to ponder how fundamentally our system has failed us.

Since the advent of the New Deal and the attendant evisceration of most constitutional limitations on Congressional authority by the Supreme Court, we have proven incapable of reducing the size or improving the performance of government — even when majorities of the public have expressed their will to do so.  That is largely because public officials’ interests are at odds with taxpayers’ interests.  Politicians must justify their existence and want to expand their power; citizens want to pay less for government while having it do more for them.

The result has been a shift in the tax burden to an ever-shrinking share of the electorate, so that politicians can play with the most money while incurring the wrath of the fewest voters.  Similarly, voters have often vacillated between candidates who say they will accomplish big things and those who say they will spend less of their money.  Those candidates lose when either the costs or the incompetence become too obvious to ignore.  Thus, politicians hide the costs and the failures in ever-more-byzantine bureaucracies and budgetary schemes, many of which are now becoming painfully apparent.

While none of us were alive to remember it, there was a time when voters and their public servants did not dance to this discordant tune.  Candidates simply understood that the federal government was incapable of acting in certain ways, no matter how much its participants might want to do it.  The elimination of these structural (i.e., constitutional) limitations on government power meant voters were the only thing standing between the politicians and their desire for power was the people.  Ergo, politicians set to snookering the people.  The results have been consistently favorable for the politicians in terms of power-accumulation over the long-term.

This trend has given rise to an unmistakable frustration within the electorate — that “something” isn’t right, and that no matter what they do at the polls, things seem to go wrong (for them, anyway).  This unarticulated discontent, in my view, would best be satisfied by restoring (or creating) structural and constitutional barriers to power-seeking among politicians that would passively protect the public from abuse by government.  In short, voters would agree to limit their (and their representatives’) freedom to choose for protection against abuse of that freedom.

Limitations on freedom, you say?  Surely this cannot be conservative.  But every limitation in the Constitution is a limitation on the freedom of either the electorate, its government, or both, to take certain actions the Founders believed to be inappropriate.  For example, the Founders chose to prevent the states from raising armies or entering into foreign treaties.  That limitation, by its very terms, prevents the voters of Vermont from demanding that their officials enter into a treaty with Iran, or the governor of Texas from raising an army and going to war with North Korea.  But the Founders designed the system to limit those powers, because they had seen them fail in the Articles of Confederation and knew that the federal government must be the nation’s only face to the world.  No one today bemoans South Carolina’s lack of a foreign policy, but these limitations were controversial within ten years of the ratification of the Constitution.  Similarly, we limit the freedom of individuals to vote for the same person for President three times; we limit the freedom of states to impose poll taxes; and we limit the freedom of government to take individuals’ property without compensation.  One can justify the exercise of each of these freedoms in certain circumstances (a great President; a means of paying for an extraordinary election; an urgent need for food by a cash-strapped government in time of war), but we the people have chosen to ignore those circumstances and establish the general rule, because on balance it is more conducive to good government.

In this spirit, I propose five new amendments, intended to make our government run more effectively.  Although my personal principles run to the right, I don’t think these rules would necessarily result in a more Republican government — just one more capable of being run as a republic.  The first of these is detailed below, but more will follow in subsequent posts.

1.  Repeal of the Seventeenth Amendment

The Seventeenth Amendment abandoned the practice of the election of Senators by the legislatures of the several states and provided for the direct election of Senators by the public.  This has perverted the federal system in two significant ways. (more…)

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