by Michael Maharrey

On Sunday, Oct. 3, the Lexington Herald-Leader ran an editorial outlining why requiring health insurance makes sense.

Following is a response written by Kentucky Tenth Amendment Center coordinator, Mike Maharrey. As of today, the Herald has not responded to the request to run this piece. We’ll let you know if that changes.


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In its Sunday, Oct. 3, editorial, the Lexington Herald Leader went to great lengths to explain why requiring every U.S. citizen to carry health insurance makes sense. But in answering one question, the Herald Leader failed to consider the first and most basic question: does the federal government have the constitutional authority to require every American to purchase health insurance?

It clearly does not.

The 10th Amendment states:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Unless the Herald Leader editorial board can point to the specific powers granted to the general government in the Constitution, any health care solutions should rightly come through the states.

Proponents of nationalized health care mangle two Constitutional provisions to justify federal control of the health care system. Both arguments exhibit a misunderstanding of the framers’ intent.

Progressives argue that the power to regulate interstate commerce grants Congress sweeping authority to regulate virtually everything, including health care. This represents a gross misunderstanding of what the framers meant by interstate commerce and the reason that they included such power in the Constitution.

The framers granted Congress authority to regulate interstate commerce simply to prevent states from imposing tariffs on one another, thus inhibiting trade. It was never intended as a positive power allowing Congress to implement regulations on things like health care. James Madison, known as the father of the Constitution, made this clear.

“It is very certain that [the commerce clause] grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government.”

In fact, the word commerce, as used by the framers, only referred to trade, not manufacturing or agriculture, much less services such as health care.

Progressives also use the taxing authority granted Congress in Article 1 Sec. 8 to argue that the federal government has the power to regulate health care.

“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; but all Duties, Imposts and Excises shall be uniform throughout the United States.”

The Constitution then proceeds to list 18 specific things to which federal taxing authority applies. Proponents of wide ranging federal power point to the words “general welfare”, arguing Congress has the power to levy taxes for any purpose that generally benefits the nation. But again, the writings of the framers do not support this view. Alexander Hamilton states in Federalist 83 that listing specific applications of  taxing power would be redundant if the authority implied unlimited powers.

“This specification of particulars [the 18 enumerated powers of Article I, Section 8] evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended.”

Madison addressed the meaning of the words “general welfare”.

“With respect to the two words ‘general welfare,’ I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.”

But progressives will argue that the courts have expanded these constitutional powers beyond their original meaning, and the federal government does indeed possess the power to mandate health insurance.

Thomas Jefferson made it clear in the Kentucky Resolutions of 1798 that the federal government itself was not the only party with the right to determine what is or isn’t constitutional. The states also possess that right.

“…the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.”

And Madison argued that state governments have a duty to “interpose” for the people when the federal government oversteps its constitutional authority.

The founders understood the dangers of expansive centralized power. George Washington said, “Government is not reason; it is not eloquent; it is force. Like fire, it is a dangerous servant and a fearful master.”

They created a system designed to keep that power in check. They granted limited, enumerated powers to the federal government and left everything else to the states. The dangers of expansive power held in the hands of a few remains no less nefarious with the passage of time.

The Herald Leader argues that because requiring all citizens to carry health insurance is a good idea and would benefit the nation, federal power should make this happen. But good intentions do not justify ignoring the plain meaning of the Constitution. Pragmatism should never trump principles. And the Herald editorial board would be wise to remember that in 1798, the federal government thought it was a good idea, and beneficial to the nation, to arrest dissenting newspaper editors under the Sedition Act.

Mike Maharrey

The 10th Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”



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