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On the Constitution, Beware the Word “Clearly”

By on January 23, 2010 in Constitution, Founding Principles, Health Care
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by Rob Natelson

On January 20, the Los Angeles Times ran an op-ed arguing that national health care mandates were constitutional. The article claimed this was true both under modern Supreme Court interpretations and under the Constitution’s original meaning.

I do not share the writer’s confidence that national health care mandates are constitutional even under the modern Supreme Court’s altered version of the Constitution — but I recognize that legal scholars differ on this question. However, the claim that the Founding Fathers would have thought the Constitution allows Congress to impose health care mandates is little short of absurd.

What really floored me was seeing that this claim was advanced by Akhil Reed Amar, a constitutional scholar I very much admire. Apparently, Professor Amar has been seriously misreading the historical record.

I know that record well: Researching and writing about it has taken much of my professional time for many years. Here are some of Professor Amar’s points, and my rejoinders:

Amar: “It’s true that the Constitution grants Congress authority to legislate only in the areas enumerated in the document itself. Other matters are left to the states under the 10th Amendment. But if enumerated power does exist, the 10th Amendment objection disappears.”

Natelson: The Tenth Amendment (and even more so the Ninth) was adopted to signal that no enumerated power should be stretched too much. Otherwise, federalism would be subverted. An important legal rule in the Founding Era (as today) is that documents should be construed to avoid a situation in which much of the language becomes useless surplusage. Stretching any enumerated power too far would render useless both the other enumerated powers and the Ninth and Tenth Amendments.

Amar: “Under the interstate commerce clause of Article I, activities whose effects are confined within a given state are to be regulated by that state government, or simply left unregulated. But the federal government is specifically empowered to address matters that have significant spillover effects across state lines or international borders.”

Natelson: The interstate commerce clause gave Congress power to regulate interstate commerce — not any “matters that have significant spillover effects across state lines.” The Constitutional Convention rejected the wording of the Virginia Plan, which arguably would have let the federal government regulate any activity with interstate spillover. Instead, the delegates limited Congress to enumerated powers, such as the power over interstate commerce. The Bill of Rights constricted those powers further.

In other words, the Founders made the deliberate decision to leave many activities with spillover effects to the states. They also included a qualified state power to deal with spillover effects by interstate compact. The Founders knew that through “sophistry” (their word) one can always claim a spillover effect, so giving the federal government power over anything with significant spillover effects would result in no real constraints on the federal government at all.

Amar: “[T]he founders authorized Congress to act even in situations that did not involve explicit markets, so long as the activities truly crossed state lines or national borders.”

Natelson: Under the Commerce Clause, Congress received the power to regulate “Commerce.” Several scholars, including I, have published research showing what the Constitution meant by this word. Based on over two thousand uses of “commerce” in Founding-Era records, we know that the word meant mercantile trade and certain closely-related activities, such as marine insurance and navigation, traditionally governed by the rules pertaining to merchants. “Commerce” did not include other economic or non-economic activities.

Amar: “In line with this broad understanding, George Washington signed a law preventing Americans from committing even non-economic crimes on Indian lands because such activities did indeed involve ‘commerce . . . with the Indian tribes.’”

Natelson: The bill referred was the Indian Intercourse Act, and it was not passed until 1790 — after all the original thirteen states had ratified the Constitution. What Congress did after all the state ratifying conventions had adjourned is not very good evidence of what those conventions understood earlier — especially since political alliances already had shifted.

More importantly, though, Professor Amar has his history wrong: The Indian Intercourse Act was not passed under the Commerce Power. It was adopted to carry out three treaties with Indian tribes — the “Hopewell” treaties of 1785 and 1786. In the Founding Era (as today), it was understood that Congress could act outside its other enumerated powers to effectuate a treaty. (That’s one reason the Bill of Rights was adopted.) Last I looked, no one claimed that Obamacare was required by a treaty.

Amar: “The healthcare bill clearly addresses activities that cross state lines. These activities are often economic in nature. . . .”

Natelson: Yes, but as pointed out above, the Founders’ Constitution did not give Congress power to regulate everything “economic in nature,” even if it had interstate effects.

This was a subject of detailed discussion during the ratification debates. To answer claims that the federal government would be too powerful, the Constitution’s advocates provided voters with lists of specific activities that would remain under exclusive state control. Among these were business regulation (other than foreign, interstate, and Indian commerce) and social services. The Ninth and Tenth Amendments were adopted largely to cement this understanding.

Amar: “The founders’ Constitution also gave Congress sweeping power to impose all sorts of taxes . . . [A]fter independence, the founders created a representative Congress with explicit authority to tax Americans up, down and sideways.”

Natelson: The Founders wanted Congress to have broad taxing power because massive amounts of revenue would be necessary in time of war. In peace, they expected excises and imposts to be sufficient. This was because the Constitution would allow Congress to spend tax revenue only for enumerated purposes. After the ratification, big-government advocate Alexander Hamilton invented the idea that Congress could spend anything it wanted for the “general Welfare,” but other Founders did not accept this idiosyncratic theory.

Amar: “During the Progressive era, Americans amended the Constitution to underscore the broad power of Congress to tax, and indeed to tax for redistributive purposes. This is the plain meaning and original intent of the 16th Amendment.”

Natelson: Legally, all the 16th Amendment did was drop the requirement that if Congress chose to enact an income tax, the tax be apportioned among the states. The 16th Amendment did not grant any further power to Congress. It increased potential federal revenue, but only to do the sorts of things Congress always had done.

Amar: “The reason for this sweeping power to tax was clearly set out in Article I: Taxes would “pay the debts and provide for the common defense and general welfare.”

Natelson: As other scholars and I have copiously documented, the “common Defence and general Welfare” language was a limit on the taxing power, not a grant. It required that when Congress taxed to fund an enumerated power, it apply the revenue to serve the welfare of the entire nation, not the welfare of a particular region or special interest.

Amar: “One special founding-era concern was national security. Taxes would be needed to fund national defense. Today, national health does indeed affect America’s ultimate national strength and national defense posture.”

Natelson: This is the classic argument that “proves too much.” As James Madison pointed out, a constitutional argument is “triable by its consequences.” Here, the consequences would be essentially unlimited congressional power, since almost any significant activity can be linked to national security. Because it is incontrovertible that unlimited congressional power is not what the Founders’ Constitution granted, the argument fails.

The argument is also a scary one, because historically “national security” often has been used to excuse the suspension of individual rights.

Amar: “This broad view of national defense is precisely the one endorsed by President Washington in 1791 when he signed a bill creating a national bank. . . .[S]upporters of the bank understood that it would exist in the service of national defense, helping to pay soldiers . . . to manage wartime finances. In 1819, the Supreme Court unanimously upheld the bank as plausibly connected to national security.”

Natelson: Beside the fact that this argument also “proves too much” and relies on evidence that arguably is too late, it also is historically misleading. The 1791 bank debate was about Congress’ power to enact laws “necessary and proper for carrying into Execution” its other powers. The Constitution’s advocates were clear that this Necessary and Proper Clause granted no additional power, but clarified that the Constitution incorporated the common law doctrine of “incidental authority” — a position consistent with how documents were written at the time.

Under Founding-Era law, an “incidental” power was an implied power that was (a) less important than an express power, and (b) customarily or reasonably necessarily (not “plausibly”) used as a way to carry out the principal power. The bank debate was about whether a national bank fit these agreed standards.

No one thought the Necessary and Proper Clause gave Congress authority to control a sixth of the American economy in peacetime. “Obamacare” is, in fact, precisely the kind of measure that the Supreme Court said (in the very case Amar cites) it would strike down.

Amar: “After the Civil War, Americans amended the Constitution to give Congress another explicit authority relevant in the healthcare debate: Section 5 of the 14th Amendment charges Congress with protecting basic human rights. Healthcare is such a right — or at least Congress is constitutionally allowed to decide it is.”

Natelson: No, it is not. See the Supreme Court’s decision in City of Boerne v. Flores (1997).

Amar: “True, the plan imposes mandates on individuals. So do jury service laws, draft registration laws and automobile insurance laws.”

Natelson: Here we get into modern constitutional interpretation. The key question – now much disputed – is whether Congress has authority under Supreme Court misinterpretations of the Commerce Power to mandate that citizens (subjects?) purchase health insurance.

The mandates Professor Amar cites are simply besides the point. Jury service is authorized by the original understanding of several provisions in the Constitution. The military draft is similarly authorized by the Constitution’s grant to Congress of power to “raise and support Armies” (including then-customary incidental powers). Automobile insurance laws are imposed by the states, not the federal government – and unlike the federal government, the states are not limited to enumerated powers.

In addition, there are important privacy (“Substantive Due Process”) concerns implicated by health care mandates that are not implicated by automobile insurance laws.

Amar: “Maybe Obamacare is good policy; maybe not. But it is clearly constitutional.”

Natelson: As any competent constitutional scholar will tell you: “Beware the word ‘clearly!’” When a judge or a lawyer claims that a disputed law is “clearly” within a constitutional power, it often means he suspects it’s probably not — but for some reason he’s arguing that it is.

Professor Natelson teaches Constitutional Law, Legal History, Advanced Constitutional Law, Remedies, and a seminar on the First Amendment at the University of Montana School of Law. He is a recognized national expert on the framing and adoption of the United States Constitution. His opinions are his own, and should not be attributed to any other person or institution.

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43 comments
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FrankMoreno1
FrankMoreno1

The point made here,"Natelson: This is the classic argument that “proves too much.” As James Madison pointed out, a constitutional argument is “triable by its consequences.” Here, the consequences would be essentially unlimited congressional power, since almost any significant activity can be linked to national security. Because it is incontrovertible that unlimited congressional power is not what the Founders’ Constitution granted, the argument fails." Let's carry this a step further, the authors of the 16th Amendment, at least a number of them, felt there needed to be a limit to congresses taxing powers. A plain reading of the amendment would tend to verify this point. "The Congress shall have power to lay and collect taxes ON INCOMES, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration." If it was the intent of the authors to grant congress unbridled taxing powers they would have worded the amendment in a way that would have effected Article I, Section 9, cl. 4, e.g., Congress shall have the power to tax without apportionment among the several states, and without regard to any census or enumeration. Essentially, this would have given congress the powers they claim to have now without the modifying words the authors chose to add, "Congress shall have power to lay and collect taxes ON INCOMES, from whatever source derived," a clear statement of limitation. Unlimited congressional power to tax was never the intention of the Founders or the authors of the 16th Amendment. As a result, the Amendment was meant to modify both Article I, Section 8, cl. 1, to place a limit on Congresses taxing power and Article I, Section 9, cl. 4, to remove the restraints of apportionment.

jim delaney
jim delaney

Thank God for Natelson and serious scholars like him. The Amar genre is, I'm afraid, symptomatic of modern liberalism and the progressive revionism which has so infected our universities. Mush has supplanted education and society and rule of law are paying a terrible price.

Jason Calley
Jason Calley

Mr. Natelson is, I think, very correct in his analysis -- but sadly, correct or incorrect makes no difference. The problem is NOT whether the Constitution is interpreted correctly. The problem is that we have rulers who do not care what the Constitution says. They do not care what it says, they will spin an "interpretation" to match their desires, and their friends who sit on the courts will support them. Any citizen who refuses to obey their dictates will find that men with guns come to kick in their front door.

THAT is the problem.

Ruth Ann Wilson
Ruth Ann Wilson

Dear Tim,

Federal Revenue Sharing of 1965. Sit through some State or local commission meetings and see how many time times the word "GRANT" comes up. Rules, regulations and mandates from State & Federal levels have destroyed local autonomy, hence we, the people, are not the ones respected at government meetings but "GRANTS" are King.

1963 REVERSE Supreme Court Ruling - that allowed the atheist O'Hare in her diabolical scheme to get prayer and Bible reading out of Public Schools. Against the Founders intentions, Read Benjamin Rush on education or any of the Founders.

1964 REPEAL Civil Rights legislation. We already have a Bill of Rights.

1965 REPEAL Federal Revenue Sharing legislation. GRANTS give teeth to all rules, regulations and mandates.

If you doubt what I say, go sit through the LOCAL County Commission meetings and see what "rules and reigns." It is the "GRANT SYSTEM" fathered by the Revenue Sharing legislation of 1965 at the Federal level and "copied" by the States at the destruction of the LOCAL governments, where we, the people, reside.

It can be fixed. "A Mighty Fortress is our God, a bulwark never failing" so wrote the Protestant Reformer Martin Luther.

For God & Country
Ruth Ann Wilson

@twitimbo
@twitimbo

Not only should we be careful of the word 'clearly' but also when people take things our of context. I've noticed that people (on both sides) take a clause or a sentence fragment and spray it around to justify their beliefs but when you put it back into context it takes on a whole new meaning. This should be stopped if we want to have a honest debate.

Ed Lewis
Ed Lewis

Hello,

Not only are mandates by Congress such as health care not constitutional, but Congress has NO authority to regulate anything in or between the many States (among does not mean between). Article I and Article IV give Congress its authority or lack thereof over the District of Columbia, federal enclaves in which a state cedes its authority to Congress (the only law making authority for the federal government), armories, docks (if authority by the state is ceded), territories, and the States of the United States which are the island states controlled by the government.

In other words, Congress exercising authority within the many states and enforcing laws it makes is patently unconstitutional and against every premise this land was founded on. To claim such is to usurp the Constitution and our Law. That is treason and one might even say an act of war.

BTW, State government nor any political subdivision thereof has authority over the people, as these, just as is the federal government, are artificial entities that the people created. The created can never be greater than the creator and never were meant to control but to protect by above all else. Their duty is to protect the rights of the people to do as they wish so long as they do not interfere with the rights of others. The phrase 'to the States, or the people' actually define that the states are the people.

There is no such thing lawfully as "home rule" taken as the State having the authority to make laws affecting the people's inherent, inalienable rights given to us by our Creator. Freedom and private mean, "not under government control." Our Law is Nature's Law and the Laws of Nature's God.

Put simply, nearly everything government, whether federal, State, or local do is unconstitutional and generally involves dozens of violations of statutes, let alone the violations of both the Constitution for the United States of America and each state's constitution. We are human beings, not corporations and other fictional entities that can be regulated by government.

BTW, every government created by the people is a chartered institution, or corporation. So, let me ask you this. Suppose McDonald’s came around and told you that you had to pay to live in your house, drive your motorized conveyance, and other orders, what would you tell McDonald’s? Well, dealing with a government is no different. It may regulate only what it creates and government darn sure did not create me.

Best regards,

ed lewis

Guido Volante
Guido Volante

NO, no, no, a thousand times no! The olive branch is laced with cyanide! Republicans must find the backbone to let their Conservative roots dictate today's terms.
Government run health care is at odds with the Constitution! Now is the time to drive that point home while Democrats are reeling from a dose of American reality! Now is the time to demand that we unburden the medical community and free the American people to access health care in a free market environment; tort reform is within reach as it has not been in 50 years. Now is the time to redouble our efforts to rid America of the cabal in our midst. Now while the enemy is confused and wounded is the time to reassert our Judeo Christian principles and hold the Constitution and Bill of Rights close to our chests, alternately waving them in glorious patriotic assertion!

Guido

JorgeShrugged
JorgeShrugged

Mr. Natelson,

I found the article most educational. From a philosophical point of view I would like to offer a couple of comments.

First, I appreciate the technique of re-defining the language being used. It has come to the point that nearly every word has been in the political lexicon has been re-defined by the progressives. It's about time we took the language back so that words do not mean their negation. In particular is the word regulation. To the founders it meant "to make regular". To the progressives it means "to tax or control" In short regulation has come to mean it's negation. Each successive regulation of industry makes trade a less regular occurrence.

Secondly is the idea that health-care could be a right or more broadly that Congress can create rights. The only rights one has are the "right to life" and rights to liberty and property which are a subset of the right to life. Also a right that violates the rights of others is a contradiction in terms. The only right one has to health-care is right to trade one's stored wealth (or credit on that wealth) for the care provided by the medical profession. To claim that my right to health-care supersedes your right to property (derived from your right to life) destroys any claim I could ever make on the right to my life and as a derivative my supposed right to health-care. Such is the nature of an inverted premise. It destroys those values it seeks to gain.
.

Drake Bailey
Drake Bailey

Aw, shucks!
There be a major ingredient missing in this pie...
The Supreme Court does not have Constitutional authority, there are two courts that do, one in DC and the other in Hawaii. At least that's what the Constitution says...
Other than that, it sure is good to see someone battin a thousand!
It might be a good idea to offer these arguments through any of those Attorney Generals who feel the same way.
I'll see if I can get hold of ours here in Florida...you all go after yours.
Yup, radical conservative, and then some.
Freeman

wniddery
wniddery

"...if the Fed. Goverment does not have the right to pass health care laws; how do they have the right to pass Sex Offender Laws ..."

First the question fails to distinguish between criminal and civil/regulatory law. The primary purpose of government, as provided in the Constitution, is to protect your right to life, and thus the power to prosecute on your behalf those that violate it. Sexual offenses are in the same category as assault, murder, etc.

Healthcare is not a right, and not having it provided is not a violation of your rights. Indeed it is the opposite - claiming a right to healthcare *requires* the violation of rights of all those that must then be forced to provide it to you, from doctors and drug companies to taxpayers.

Tim
Tim

My Question is if the Fed. Goverment does not have the right to pass health care laws; how do they have the right to pass Sex Offender Laws(Adam Walsh Act) and force the states to pass the laws the way the feds want these laws applyed? Thank You in Advance

wniddery
wniddery

Mr. Natelson writes:
"The military draft is similarly authorized by the Constitution’s grant to Congress of power to “raise and support Armies”

I take issue with this. Conscription is in direct violation and contradiction to the right to life and liberty intended to be protected by the Constitution. Even General Washington's army was voluntary and free to walk away at the end of their contracted term.

Paul Beaird
Paul Beaird

Clearly, Mr. Amar needs an update on what rights are, what they are not and what violates them. That update is available in the fine essay "Man's Rights" by America's moral philosopher, Ayn Rand, in her little paperback book on the factual basis of morality, called, The Virtue of Selfishness. That essay is a necessary part of the freedom philosophy.

Rita Lawrence
Rita Lawrence

Progressives uses lies as a tactic to win arguments. They don't seem to have the where with all to avoid getting caught by smarter and better people who can talk straight.

TxTenther
TxTenther

Prof. Natelson? I have written on other posts here how the USSC has basically turned it's back on the 10th amendment in favor of an expansive interpretation of the Commerce Clause, as well as others, to limit state sovereignty and expand the power of the federal government.

I have argued for an approach that will be long, difficult and time consuming. But one that is ironclad. That approach is to work from the ground up, working toward taking over enough state legislatures to call a Constitutional Convention.

I agree with you and most here about the original meaning of the Constitution. However, since the 1930's, the USSC seems to be in disagreement with us. What are your thoughts on the best way for we the people, through our state legislatures, to return power, once and for all, back to where it belongs?

As I said when I first started coming here...

"To paraphrase a quote...This isn't our Founders republic anymore."

DerekSheriff
DerekSheriff

Don't forget to follow the link to the original op-ed by Prof. Amar and leave a comment! I did, and I also included a link to this TAC article in my comment!

Rob Natelson
Rob Natelson

You are welcome, DerekSheriff.
- Rob Natelson

Rob Natelson
Rob Natelson

I'd like to underscore the point made by Guest, Michael Boldin, and others that words used in the Constitution sometimes differ subtly from the way we use them today.
Several studies have shown that "To regulate Commerce" had a specific meaning then. For example, Randy Barnett surveyed over 1500 uses of the word in newspaper archives. My own study (linked above) examined about 500 uses of "commerce" in the legal literature of the time (e.g., law dictionaries, cases, treatises, pamphlets written by lawyers, etc.)
We conclude that the Commerce Power allowed Congress to impose and remove restrictions on trade (e.g., quotas, tariffs), to regulate merchants and prices, navigation, and commercial finance and commercial insurance -- largely the discrete body of law then known as the "law merchant." Congress also received a few other economic powers as well, such as to regulate bankruptcies, patents and copyrights, and establish post offices and post roads -- powers that would be totally superfluous if the Amar definition of the Commerce Power were true.

Guest
Guest

That's interesting. '[T]o regulate merchants and prices" sounds far too broad. Perhaps I'm misreading it but it sounds as if Congress can 'control' merchants even to the point of setting prices?! I must be missing something here.

The 'superfluity' point is the death knell for those such as Prof. Amar who argue for a broad interpretation of Congressional power under the US Constitution.

As a lawyer and longtime student of the US Constitution, I find it laughable that men of the intellectual prowess of Madison, Jefferson, et al are supposed to have proposed a document wherein the bulk of it is pointless.

Again, legally and logically, legal documents must be construed so as to render ALL parts meaningful,if possible. It is not only possible but relatively easy to construe all of the US Constitution in a meaningful light when one applies a lens of 'limited government.'

The problems only arise when one starts with the faulty premise that the Federal Government's powers were intended to be as broad as possible.

That's why this web site is so aptly named. No one in her right mind can honestly read the entire document and especially the 9th and 10th amendments and conclude, as Prof. Amar and his ilk in the 'Living Constitution' crowd do, that the powers granted to Congress should be read in as broad a light as possible.

Sadly, intellectual honesty is dead and we all suffer under 'the ends justify the means' thinking today.

DerekSheriff
DerekSheriff

My sister-in-law forwarded me the link to Prof. Amar's Op-ed. I, in turn forwarded it to the TAC with the note, "In my dreams, Prof. Rob Natelson would write a detailed response to this!"
My prayers were answered and my dream came true! Thank you again Prof. Natelson!

DixHistory
DixHistory

I am a layperson but common sense tells me the only people that will have a say is the the current SCOTUS should they so choose.

I am not encourged they will see things as most do on this blog. I think they will likely see it as Professor Amar’s does. Be it right or wrong, should a case ever get standing those like Anar and Obama will win the day.

Might makes right and all ways has.

Monorprise
Monorprise

You are probably correct in the mind's of the u.s. supreme court, that being said there are certainty things we can do to setup a situation in which we can "force" their hand.

Keep in mind that the Courts in the United States have little to no power in their own right, if they desire to have control at all they must depended entirely upon the willingness of the people to respect their rulings. To that end, we aim to insure that the only respectable rulings lay-along theses lines.

Sure enough dispute people like Anar and other big government lovers, they will have little choice but to go along. The same can be said of congress. Much if not most of their power does not come from the police they dont have, to police the people but the willingness of the people and their states to enforce their domestic edicts.

To that end it is in fact the perception of power and control which gives them the vast majority of their unconstitutional power. Although they may not know this as well as the court must, Saving face even if that means caving to a position more similar to ours should be quite important to them.

This is in the end how Nullification generally ends up working as far as the history books are concerned.

Apen
Apen

All this talk is fine however there is still no way of enforcing the constitution when the government itself decides to violate it. Now that it has become apparent we have a congress and senate that refuses to require a president be qualified save by their determinations and the courts claim as citizens we have no right to question their decision to ignore the constitution I think it is quite clear the route to socialism is through majority rule and that majority is not a public referendum but a political power play. That tree of liberty is looking quite dry as of late.

@twitimbo
@twitimbo

The writer says that it is protecting a right like the right to health care but that would only be true if there were laws forbidding someone from receiving health care. The constitution would then strike it down and allow your free action to pursue that object. His vision of 'rights' is really a freebie from the government and is like saying welfare is a right or a job is a right. Well everyone has the right to pursue those things and those rights are protected by protecting a person free action to pursue those things not ensuring that they will receive those things. The reason for this is because freedom is not a material object like a home, car, healthcare, or etc and exist within our free action to do something so when someone says that the constitution is protecting our freedom then they are saying that it is protecting our free action.

Stephenie
Stephenie

The "clearly" here is probably used the same way Obama does when he says "let me be entirely clear" over and over and over and over..............you get the picture.

Monorprise
Monorprise

At least the Los Angeles Times, is admitting that there is a difference between "modern Supreme Court interpretations" and "the Constitution’s original meaning" thus admitting that the U.S. Constitution has been overthrown by the U.S. Supreme court in cahoots with rest of the Federal Government.

This admission alone should be remembered as a key tool in arguing against their probable opposition to nullification and interposition efforts.

B. Johnson
B. Johnson

Yes, let's be clear about what the Constitution and its history says about healthcare.

Given that the federal Constitution is silent about public healthcare, the 10th A. automatically reserves government power to regulate and lay taxes for healthcare to the states, not the Oval Office and Congress.

Consider that Jefferson, while discussing the Founder's division of federal and state government powers, had noted that the Founders had trusted the states, not the feds, with the care of the people.

"Our citizens have wisely formed themselves into one nation as to others and several States as among themselves. To the united nation belong our external and mutual relations; **to each State, severally, the care of our persons** (emphasis added), our property, our reputation and religious freedom." --Thomas Jefferson: To Rhode Island Assembly, 1801. ME 10:262 http://tinyurl.com/onx4j

In fact, the USSC has already decided that Congress has no business sticking its big nose into the medical practice.

“Direct control of medical practice in the states is obviously beyond the power of Congress.” –-Linder v. United States, 1925. http://supreme.justia.com/us/268/5/case.html

It's also important to note that Chief Justice Marshall had established the case precedent that Congress cannot base federal taxes on state power issues.

"Congress is not empowered to tax for those purposes which are within the exclusive province of the States." --Chief Justice Marshall, GIBBONS V. OGDEN, 1824. http://supreme.justia.com/us/22/1/case.html

So not only is proposed Obamacare constitutionally unauthorized, but Congress doesn't have the power to lay taxes to fund Obamacare either.

If Congress actually respected the Constitution, what Congress needs to do establish Obamacare is the following. Article V requires Congress to propose an amendment to the states which, if the states chose to ratify such an amendment, would expressly give power the Congress to administrate healthcare. But the states can always choose not to ratify such an amendment in which case Congress remains without power to address healthcare issues.

The reason that Congress is pretending that it has the power to establish healthcare is the following. By the early 1940s, constitutionally clueless FDR had managed to nominate 8 state sovereignty-ignoring justices. These justices sought to allow Congress to overstep its constitutional limits to help FDR establish his socialistic spending programs. Justices did so by not only perverting the Founder's intentions for the general welfare and commerce clauses, but also ignored state sovereignty statutes like Article V and the 10th Amendment when they decided .

And the reason that the corrupt federal government is getting away with ignoring its constitutional limits is because citizens have evidently not been teaching the Constitution and its history to their children for many generations, IMO.

B. Johnson
B. Johnson

Yes, let's be clear about what the Constitution and its history says about healthcare.

Given that the federal Constitution is silent about public healthcare, the 10th A. automatically reserves government power to regulate and lay taxes for healthcare to the states, not the Oval Office and Congress.

Consider that Jefferson, while discussing the Founder's division of federal and state government powers, had noted that the Founders had trusted the states, not the feds, with the care of the people.

"Our citizens have wisely formed themselves into one nation as to others and several States as among themselves. To the united nation belong our external and mutual relations; **to each State, severally, the care of our persons** (emphasis added), our property, our reputation and religious freedom." --Thomas Jefferson: To Rhode Island Assembly, 1801. ME 10:262 http://tinyurl.com/onx4j

In fact, the USSC has already decided that Congress has no business sticking its big nose into the medical practice.

“Direct control of medical practice in the states is obviously beyond the power of Congress.” –-Linder v. United States, 1925. http://supreme.justia.com/us/268/5/case.html

It's also important to note that Chief Justice Marshall had established the case precedent that Congress cannot base federal taxes on state power issues.

"Congress is not empowered to tax for those purposes which are within the exclusive province of the States." --Chief Justice Marshall, GIBBONS V. OGDEN, 1824. http://supreme.justia.com/us/22/1/case.html

So not only is proposed Obamacare constitutionally unauthorized, but Congress doesn't have the power to lay taxes to fund Obamacare either.

If Congress actually respected the Constitution, what Congress needs to do establish Obamacare is the following. Article V requires Congress to propose an amendment to the states which, if the states chose to ratify such an amendment, would expressly give power the Congress to administrate healthcare. But the states can always choose not to ratify such an amendment in which case Congress remains without power to address healthcare issues.

The reason that Congress is pretending that it has the power to establish healthcare is the following. By the early 1940s, constitutionally clueless FDR had managed to nominate 8 state sovereignty-ignoring justices. These justices sought to allow Congress to overstep its constitutional limits to help FDR establish his socialistic spending programs. Justices did so by not only perverting the Founder's intentions for the general welfare and commerce clauses, but also ignored state sovereignty statutes like Article V and the 10th Amendment when they decided .

And the reason that the corrupt federal government is getting away with ignoring its constitutional limits is because citizens have evidently not been teaching the Constitution and its history to their children for many generations, IMO.

Bob Greenslade
Bob Greenslade

I am glad to see Amar taken apart for his distortions and lame commentary.

However, based on the following documentation, I disagree with both professors on the Sixteenth Amendment.

In 1980, the Congressional Research Service prepared a report for Congress on the effect of the Sixteenth Amendment :

“The Supreme Court, in a decision written by Chief Justice White, first noted that the Sixteenth Amendment did not authorize any new type of tax, nor did it repeal or revoke the tax clauses of Article I of the Constitution… Direct taxes were, notwithstanding the advent of the Sixteenth Amendment, still subject to the rule of apportionment and indirect taxes were still subject to the rule of uniformity.”

Source for above quote: “Some Constitutional Questions Concerning the Federal Income Tax,” Howard M. Zaritsky, (Congressional Research Service, Washington, D.C., 1980) p. 5, Report No. 84-168 A 734/275.

The CRS Report made the following statement concerning the Supreme Court’s decisions on the nature of the federal income tax:

“Therefore, it can be clearly determined from the decisions of the United States Supreme Court that the income tax is an indirect tax, generally in the nature of an excise tax.”

Source for this quote: page 6 of the 1980 CRS Report.

In 1989, the Congressional Research Service revised and updated its Report to Congress concerning the federal income tax. This Report addressed the nature of an excise tax:

“An excise tax is a tax levied on the manufacture, sale, or consumption of a commodity or any various taxes on privileges often assessed in the form of a license or fee. In other words, it is a tax on doing something to property or on the privilege of holding some property or doing some act, not a tax on the property itself. The tax is not on the property directly, but rather it is a tax on the transaction.

When a court refers to an income tax as being in the nature of an excise, it is merely stating that the tax is not on the property itself.”

Source for this quote: “Frequently Asked Questions Concerning the Federal Income Tax,” John R. Luckey, (Congressional Research Service, Washington, D.C., 1989) p. 5, Report No. 89-623 A.

On March 27, 1943, an analysis of the federal income tax was published in the Congressional Record. This compilation of information was written by a former legislative draftsman in the Treasury Department (one of the people who wrote the tax laws) and entitled: “The Income Tax is an Excise Tax, and Income is Merely the Basis for Determining its Amount.” This commentary stated, in part:

“The income tax is, therefore, not a tax on income as such. It is an excise tax with respect to certain activities and privileges which is measured by the income they produce. The income is not the subject of the tax: it is the basis for determining the amount of the tax.

Source for this quote: Congressional Record, Volume 89: Part 2, p. 2980.

According to this documentation, the income tax is an indirect excise tax. The power to impose excise taxes, irrespective of what they are called, is Article I, Section 8, Clause 1-not the Sixteenth Amendment.

MortMan
MortMan

I'm afraid your rationale misrepresents the definition of "commodity". From Dictionary.com: a commodity is "an article of trade or commerce, esp. a product as distinguished from a service."

For the income tax to be an indirect excise tax, it would have to exclude service-related income from its basic calculation. Only product-related income would be taxable.

The quote from the congressional record is sophistry.

Bob Greenslade
Bob Greenslade

MortMan- you said: "The quote from the congressional record is sophistry." I offer the following for you to consider.

Under the Social Security Act---

1-Employees are not making contributions into a retirement program, but are, in reality, paying a “special income tax,” which is deducted from their wages and paid to the federal government by the employer. This “special income tax” is an indirect excise tax imposed on the employee for the so-called “privilege” of being employed by an employer.

2-Employers are not making matching contributions into a retirement program for their employees, but are, in reality, paying an indirect excise tax for the so-called "privilege" of having individuals in their employ.

3-If you are self-employed you pay both taxes.

Both taxes are indirect excise taxes and neither tax is on a commodity. The Sixteenth Amendment, irrespective of how you characterize it, is a non-factor in the assessment of these taxes.

The same holds true for corporate income tax.

In 1911, two years before the adoption of the Sixteenth Amendment, the Supreme Court sustained the federal government’s power to impose an income tax on corporations as an excise tax pursuant to Article I, Section 8, Clause 1 of the Constitution.

Known as the Corporation Excise Tax Act of 1909 [also referred to as the Corporation Tax Act of 1909], it imposed a special income tax [excise tax] on corporations for the "privilege" of doing business in a corporate capacity. Section 33 of the Act stated, in part:

“That every corporation…shall be subject to pay annually a special excise tax with respect to carrying on or doing business…upon the net income…”

Section 38, Act of August 5, 1909 (36 Stat., 112)

This excise tax is not a tax on income―the tax is measured by income. Income is not the source of this excise tax―it is the basis for determining the amount of the tax.

This indirect excise tax became the model for the income tax on individuals adopted 2 years later.

On April 26, 1913, Cordell (Judge) Hull, a Representative from Tennessee who had helped draft the legislation, explained the “new” income tax law written by Congress following the adoption of the Sixteenth Amendment:

“The proposed law should be construed as similar laws have been construed by the courts with respect to the application of the tax [Corporation Excise Tax Act of 1909], and that is that the income in question shall be the measure of the tax and not the specific fund out of which the tax is necessarily payable; the bill takes as the measure of the tax the net income of the proceeding year."

See Congressional Record, Volume 50: Part 1, pp., 505-506 for Hull's comments on the tax.

Not a tax on income but a tax measured by income... an excise tax.

rjj
rjj

Thats right but you alos missed that they werre very specific types of corporations, joint stock and associations that issued capital stock, the average corporate entity today would not meet those specifications. All moot as the 1909 act was nullified in its entireity by the 1913 TARIFF ACT, upopn which the modern day code is predicated. Todays "income Tax" is in actuality a tarrif.

Bob Greenslade
Bob Greenslade

U.S. Supreme Court

Stratton's Independence, Ltd. v. Howbert, 231 U.S. 399 (1913)

No. 457

Argued October 211 1913

Decided December 1, 1913

231 U.S. 399

Syllabus

"The Corporation Tax Law of 1909, having been enacted before the ratification of the Sixteenth Amendment, was not in any proper sense an income tax law; but was an excise tax upon the conduct of business in a corporate capacity measured by the income..."

wniddery
wniddery

"This excise tax is not a tax on income―the tax is measured by income. Income is not the source of this excise tax―it is the basis for determining the amount of the tax. "

This falls flat on its face. If it is not on income then it would not differ by income, it would be a flat, fixed amount regardless of income. That one corporation pays more or less than another due to income means it is indeed a tax on that income.

Bob Greenslade
Bob Greenslade

MortMan- you said: "The quote from the congressional record is sophistry." I offer the following for you to consider.

Under the Social Security Act---

1-Employees are not making contributions into a retirement program, but are, in reality, paying a “special income tax,” which is deducted from their wages and paid to the federal government by the employer. This “special income tax” is an indirect excise tax imposed on the employee for the so-called “privilege” of being employed by an employer.

2-Employers are not making matching contributions into a retirement program for their employees, but are, in reality, paying an indirect excise tax for the so-called "privilege" of having individuals in their employ.

3-If you are self-employed you pay both taxes.

Both taxes are indirect excise taxes and neither tax is on a commodity. The Sixteenth Amendment, irrespective of how you characterize it, is a non-factor in the assessment of these taxes.

The same holds true for corporate income tax.

In 1911, two years before the adoption of the Sixteenth Amendment, the Supreme Court sustained the federal government’s power to impose an income tax on corporations as an excise tax pursuant to Article I, Section 8, Clause 1 of the Constitution.

Known as the Corporation Excise Tax Act of 1909 [also referred to as the Corporation Tax Act of 1909], it imposed a special income tax [excise tax] on corporations for the "privilege" of doing business in a corporate capacity. Section 33 of the Act stated, in part:

“That every corporation…shall be subject to pay annually a special excise tax with respect to carrying on or doing business…upon the net income…”

Section 38, Act of August 5, 1909 (36 Stat., 112)

This excise tax is not a tax on income―the tax is measured by income. Income is not the source of this excise tax―it is the basis for determining the amount of the tax.

This indirect excise tax became the model for the income tax on individuals adopted 2 years later.

On April 26, 1913, Cordell (Judge) Hull, a Representative from Tennessee who had helped draft the legislation, explained the “new” income tax law written by Congress following the adoption of the Sixteenth Amendment:

“The proposed law should be construed as similar laws have been construed by the courts with respect to the application of the tax [Corporation Excise Tax Act of 1909], and that is that the income in question shall be the measure of the tax and not the specific fund out of which the tax is necessarily payable; the bill takes as the measure of the tax the net income of the proceeding year."

See Congressional Record, Volume 50: Part 1, pp., 505-506 for Hull's comments on the tax.

Not a tax on income but a tax measured by income... an excise tax.

wniddery
wniddery

"This excise tax is not a tax on income―the tax is measured by income. Income is not the source of this excise tax―it is the basis for determining the amount of the tax. "

This falls flat on its face. If it is not on income then it would not differ by income, it would be a flat, fixed amount regardless of income. That one corporation pays more or less than another due to income means it is indeed a tax on that income.

MichaelBoldin
MichaelBoldin

Not addressing your point, but just a tip on dictionaries....

When reviewing the meaning of something in the Constitution, it's essential to understand a definition of the words used at the time of the founding....and since meanings have changed greatly over the years, using modern dictionaries will often lead you astray.

Easy ones to find are Samuel Johnson's dictionary of the English Language - I believe a 1770 version is available in full on Google Books online - another is Nathan Bailey's 1782 dictionary.

The same goes for historical evidence - regarding what Bob provided above. To gain insight to original meaning, it's not proper research method to source documents from modern times. In fact, the top scholars on the era would rarely rely on anything after 1800 or so..

Guest
Guest

This is exactly right and an important point. I'm a lawyer and a student of the Constitution for 30 years. It's often difficult for people who have not studied the Constitution carefully to understand that words are sometimes slightly different in meaning today than they were in the late 1700's.

A good example is the word 'regulated' in the 2nd amendment. Today, we might take the word to mean 'controlled' as in a 'well controlled militia.'

Back in the 1700's, the word 'regulated' meant 'adjusted so as to function properly' as in a 'well functioning militia.'

What a difference!

The term 'regulation' is commonly used in piano tuning where the piano's complicated action is 'regulated' so that the piano will perform properly for the pianist. This term was common in the 1700's for all machinery, including pianos.

If you don't know these facts, you can easily misinterpret the Constitution. But, if you approach it with an open mind and sincerely try to glean the overall purpose of the document before you read it, you can harmonize the entire document so that it ALL makes perfect sense.

This is the goal the law seeks in interpreting legal documents whether they are contracts, statutes or Constitutions. And, it's one of the points Prof. Natelson makes in this article that Prof. Amar completely misses in his zeal to reach a pre-determined conclusion.

MortMan
MortMan

II understand the concern over choice of dictionary, but would point out that the quote to which I was responding was from 1989, and therefore the modern definition of "commodity" seemed appropriate.

I work in the aerospace software industry, and I fully appreciate the need to be exact in one's usage of terms. Thank you for the pointer on appropriate founding-era lexicons.

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