Although there may be problems, as in any industry, I cannot keep from wondering to what, or which, “system” everyone is referring.

There is all this talk of the “National” health care system; however, I fail to find where health care is a “national” object. There is nothing whatsoever in the Constitution suggesting it is among the certain enumerated objects of the federal government, with the whole works of the Convention at Philadelphia making it more than obvious that it cannot be.

So, how can there be a “national” system for something that is unquestionably not among the certain enumerated objects that are delegated to the federal government?

What is plain, though, rather than there being any kind of “national” system, there are certainly individual separate systems belonging exclusively to the several States’ individual systems that the States have a constitutionally guaranteed right to establish or not establish, and to regulate or not regulate, as they see fit. Or, as they decide is appropriate for their individual and separate circumstances and interests.

What is also plain is that, no matter the alleged good intentions, good faith or urgency for a needed plan, and no matter the degree of passion or how great the numbers in its favor, until which time the necessary additional powers are constitutionally granted to the Federal Government, this remains their guaranteed right, individually and collectively within their separate societies made plain by the 9th and 10th amendments to the constitution of these united states.

Specifically, the Federal government has utterly no direct authority or jurisdiction whatsoever extending to those objects belonging exclusively to this Union’s member States any more than it has authority extending into any State in Europe;  and, whether or not anyone agrees, is irrelevant, for the plain truth is that Health Care, its industries, institutions, businesses, professions, education, licensing, wages, et cetera; are all among those objects belonging exclusively to the several States.

Not only does the authority of the Federal government not extend to such objects plainly belonging exclusively with the States, the undeniable fact still remains that the fundamental purpose of Union and its Federal government is not to be the source and facilitator of interferences and aggressions against them.

But instead, for the purpose of preserving them as separate independent sovereign societies; and, in so doing, meant to protect and preserve their Rights as the true sovereigns to decide separately and independently for themselves how the considerable remaining powers meant to be left with them shall be, or shall not be, exercised.

In other words, it is the absolute Right of the People of each State, independently of one another, to freely choose how they want to govern their separate society, to wit, how liberal and generous or how conservative and frugal it wants to be without interferences and impositions from other member States or the Federal government.

And, in exercising those Rights of Freedom and Liberty, no State has a right, above all the Federal government, to judge and impose their will upon another just because that smaller society is, in their meager opinion, making inappropriate laws, not making desired laws or because it has customs, morals, habits or interests that are contrary to what they think  or believe is appropriate and conducive to being an American State, even though its laws, customs, morals, habits and interests are not contrary to the Constitution.

So, what does this mean and how does it all add up as it pertains to the President and the controlling faction with which he is aligned?

As a Union meant to be of Laws derived from “true” construction and not of Men derived from forced construction, and as servants that are obligated by their required oaths to support the constitution of these united states, they have utterly no authority whatsoever to judge that which plainly belongs exclusively with the individual States;  nor do they have any authority whatsoever discussing, above all, proposing or promising to establish a National system, reform the several State systems made under their individual authorities or make health care a fundamental right using ordinary acts of legislation.

And, by arrogantly pursuing their current course, they make plain their intent to pervert the Constitution (according to the framers, an act tantamount to treason against these united states) and commit lawless aggressions against the States in utter defiance of their oaths and the Constitution.

In doing so, they are lawlessly encroaching upon and committing direct interferences into jurisdictions, authorities and objects belonging exclusively with the States by exploiting a temporary exigency to better excite the emotions and passions of the People so as to facilitate and hatch there repugnant schemes, perfectly timed so that on the spot, none can be, nor are they permitted to be, immediately refuted.

“But it will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies [States], will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such.”  (Hamilton, fp. 33)

Wayne Barbarek is the author of Documents Illustrative V1.0c  a searchable database product containing the Journals of the Convention at Philadelphia and the Federalist Papers, which his company publishes and can be downloaded at http://www.documentsillustrative.com  “helping to make it easier for today’s citizens to do that for which the original legislators preserved the Journals: “contradict false statements propagated about the Constitution.”

by Rob Natelson

Speaker Nancy Pelosi has issued a press release in which she purports to rebut those of us who have expressed doubts about the constitutionality of some health care reform plans.

Pelosi (or her ghostwriter) claims:

“The 10th amendment to the U.S. Constitution states that the powers not delegated to the federal government by the Constitution, nor prohibited by it to the states, are reserved to the states… or to the people. But the Constitution gives Congress broad power to regulate activities that have an effect on interstate commerce. Congress has used this authority to regulate many aspects of American life, from labor relations to education to health care to agricultural production. Since virtually every aspect of the heath care system has an effect on interstate commerce, the power of Congress to regulate health care is essentially unlimited. (bolded in original).

For several reasons, this is a highly misleading statement.

First, it fails to mention a concern expressed by many constitutional scholars, including those on the Left: Substantive due process.

“Substantive due process” is the doctrine by which the Supreme Court strikes down laws it deems unacceptably interfere with personal privacy or autonomy. Health care laws that, for example, limit one’s ability to fund and control one’s own health care could well run afoul of substantive due process rules.

Second, the statement fails to mention that, while the Supreme Court has upheld many delegations of power from Congress to executive branch agencies, the Court has affirmed repeatedly that there are limits. Some health care proposals involve wider delegations of authority than any since the New Deal’s National Reconstruction Adminisration (NRA) — which was invalidated by a unanimous Court.

Third, the Pelosi release disregards the fact that on several occasions the modern Supreme Court has struck down overreaching federal legislation, supposedly adopted under the Commerce Power. Also, on several occasions, the Court has interpreted congressional acts narrowly to avoid constitutional conflicts.

Fourth: Pelosi (or her speechwriter) clearly misstate the current Supreme Court’s test for laws under the Constitution’s Commerce Power. The statement that Congress can regulate “activities that have an effect on interstate commerce” should be that Congress can regulate “economic activities that have a substantial effect on interstate commerce.” Non-economic activities, such as some health care decisions, would have to meet a much stricter test. This may seem to be a minor mistake, but for legal purposes it is an important one, and one that, for the Speaker of the House of Representatives, is not easily excusable.

Finally, Pelosi (or her ghostwriter) commits the mistake of failing to look at wider judicial trends. One of these trends is the long-term movement by the Supreme Court toward interpreting the Constitution according to its real meaning – the original understanding of the Founders and Ratifiers.

And virtually no knowledgeable person thinks government health care is constitutional under that standard.

Rob Natelson is Professor of Law at The University of Montana, and a leading constitutional scholar.  (See www.umt.edu/law/faculty/natelson.htm.) His opinions are his own, and should not be attributed to any other person or institution. ]]> http://tenthamendmentcenter.com/2009/09/17/pelosis-misleading-statement-on-the-constitutionality-of-government-health-care/feed/ 56 http://tenthamendmentcenter.com/2009/09/15/opting-out-of-national-health-care-in-ga/ http://tenthamendmentcenter.com/2009/09/15/opting-out-of-national-health-care-in-ga/#comments Tue, 15 Sep 2009 11:13:33 +0000 Michael Boldin http://www.tenthamendmentcenter.com/?p=2986

Georgia State Senator Chip Rogers wants to propose a State Constitutional Amendment to GA voters so, if passed, residents don’t have to participate in government-run health care

Democratic presidential hopeful John Edwards said on Sunday that his universal health care proposal would require that Americans go to the doctor for preventive care.

Did I read that correctly – required? There’s more…

“It requires that everybody be covered. It requires that everybody get preventive care,” he told a crowd sitting in lawn chairs in front of the Cedar County Courthouse. “If you are going to be in the system, you can’t choose not to go to the doctor for 20 years. You have to go in and be checked and make sure that you are OK.”

He noted, for example, that women would be required to have regular mammograms in an effort to find and treat “the first trace of problem.” Edwards and his wife, Elizabeth, announced earlier this year that her breast cancer had returned and spread.

He did say “if you are going to be in the system,” but it still leaves a number of questions. Here’s a few to start:

• Will participation in this national health care program be required for all Americans?
• If not, will those that don’t participate still be required to pay for it?
• If so, what will be the sanctions for those that choose not to follow your requirements – fines, prison, kicked out of the program?
• If fines will be the recourse, what will the enforcement mechanism to collect – civil or criminal?
• If someone is kicked out of the program, what will their options be for health care, or will they be left out?
• Where in the Constitution, specifically, is the Federal Government given the power to provide health care, and where is it authorized to require any level of participation in such a program?

I still have quite a few more questions to ask, but this is a good start. I’ve sent them off to the Edwards campaign, and will be sure to post their response if there is any.