Universal Health Care: Unconstitutional
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A whole heck of a lotta talk, time, and idiocy has been dedicated to the universal health care (UHC) debate. Everyone's got their own point of view, and not a single person wants to listen to anyone else's point of view.
Surely, something good can come of it all, right?
The left wants UHC for everyone because they want to stop the suffering and pain that might be alleviated through UHC. The right wants to keep government's hands off of your body. And just about everyone else argues that 'something must be done!".
Undeniably, no one wants to see anyone else suffer. Everyone just simply disagrees with which is the best way to go about helping each other out! I have my own point of view as to that 'best way' to help everyone out, but I've already written my point of view about it. My opinion isn't what's important here (although, it will be mentioned briefly for those who are not following me).
This article is going to discuss the completely overlooked aspect of this debate: it's constitutionality.
Universal Health Care is Unconstitutional
No matter which side of the argument (there are more than two sides) you fall under, one statement needs to be said: The simple and undeniable fact about the whole UHC argument is that, if UHC were implemented it would unconstitutional.
The Constitutionality of a law has never stopped Congress before, but it needs to be said; Unless Congress wants to amend the Constitution, the whole debate is moot.
Article 1, Section 8 & 9, and the 10th Amendment
Let's begin the magical discovery of the Constitution by simply reading the damned thing. Here is Article 1, Section 8 in it's entirety. I apologize for the length of it, but for God's sake, it's the Constitution!!
Section 8 - Powers of Congress
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;
To borrow money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
To establish Post Offices and Post Roads;
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
These are the only powers granted to Congress. If Congress takes any action surpassing these powers, then that action is unconstitutional.
If we look through Section 8, we see... nothing pertaining to health care.
(Before you say "what about 'general welfare'?", I want to explain that, for 'general welfare' to have the type of meaning that people claim it has, the entire Constitution would have to be meaningless. Think about it - what type of legislation can not be filed under 'general welfare'? It would make absolutely no sense whatsoever to claim that Congress has the ability to legislate over any issue, but then to proceed to make a specific list of things that they have the power to legislate. 'General welfare' is only in the Constitution to show a sort of explanation as to what sort of powers Congress has. It was meant to further limit the powers of Congress, showing that the legislation would have to be applicable to the general welfare - not just the welfare of a specific small group of people. To further destroy the 'general welfare equals UHC' argument, why the heck would the power to designate money to the creation of post offices and post roads be spelled out if 'general welfare' had the sorts of meaning people claim it has?)
Then, to go even further in our discussion of UHC and the Constitution, let's look at the 10th Amendment:
Amendment 10
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.
As you can see for yourself, any power not granted to the federal government are reserved for the States, or to the people. This means that Congress, the White House, and the Supreme Court are limited to the powers delegated to them by the Constitution; they have no other powers.
It is utterly mind boggling to see how this amendment could possibly be taken so far out of whack: it is stated as clear as night and day!
If Congress doesn't have the authority to do something, then the states get to have the ability to do it. If the states and the federal government don't have the ability to do something, or the state governments just don't use powers that they have, then the people individually do have the ability to do it, unless it has been outlawed in some way.
What Does This All Mean?
Because the federal government does not have the ability to legislate on such matters of health care, it is unable to do so until the Constitution is amended. The Constitution has a system set up to alter its text, and this system is called the amendment process. So, if we actually and truly want the federal government legislating on our health care, then we must first amend the Supreme Law of our Land.
Until then, health care is at best a State's issue. This means that, instead of writing to your Congressman, you should be writing to your Governor and State Legislators. If we want UHC, then it can only be UHC for your state.
But, if the State refuses to go along with UHC, and the federal government is not allowed to legislate on such matters, then how does one go about getting health care?
Well, the answer should be obvious - you get health care at the individual level of government; yourself and others who engage in private contracts to give you health care. This would mean you going to the doctor and engaging in a contract to get help, and then your pharmacy and a drug company engaging in contracts to supply medication, and any other sort of set of private contractual means.
I personally believe that the true answer to health care reform lies in removing the current government regulations and laws from the current system of private health care, and just about every economist worth his grain of salt agrees with me - Milton Friedman, Ludwig Von Mises, Frederich Hayek, Henry Hazlitt, and so on.
But, if we really want government interfering with the market, let's do it properly - have State-universal health care, or amend the Constitution to allow Congress the ability to legislate on these matters.
Until then, the entire discussion is moot.
Many will retort that I'm being to crass, or 'who cares what the Constitution says while people are dying!'. But the simple fact is, if you look at government interference into the health care market, prices go up directly with the amount of government interference into the market - whether it be the 1942 stabilization act, the tax-exempt status of health-care related income from employers, the monopoly privileges of the AMA, or the ridiculous limits placed on private health insurers. More government interference means higher prices.
All that this means is that, once again, for the thousandth time, our founding fathers got it right, and we, the bratty kids, think we know better.
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I pray you are correct but I don't believe it will ever be stopped via the courts. There is a chance it could get slowed down and that may allow time (2012) for a political solution to address this mess. We can only pray this unites many people who will elect officials who will actually represent them on this issue and overturn this terrible piece of legislation.
Thanks for the comments, guys!
To Kowality: thanks for the praise! I highly recommend ALL the books that i linked, they've really opened my eyes. Gutzman is fantastic, and so is Woods.
To Tom T: Yeah, i hope i get it right to, but lord knows this piddly "constitution" thing never stopped the government fat cats before!
I think you are right and this is an excellent hub. I hope these states that are trying to prevent the national health care will prevail and this may end in the Supreme Court. My other hope is that in the next 2 elections we get all new people, preferably not all lawyers.
"Undeniably, no one wants to see anyone else suffer."
I deny this strongly.
Walmart alone has shown a propensity to enable its hourly American workers to suffer...which is why Walmart has joined in the fight to knock down health care initiatives in the United States, and which is why the American Chamber of Commerce in China works so hard against labor laws...
Perhaps Nike truly cares about the children their producers chain to machines....in order to ensure they don't have to pay American workers...or supply health care..
And then there are companies like Royal Dutch Shell..
I contend that, since the Congress represents the People....the laws that they enact regarding health care enable rights reserved by the people to be issued to the Federal Government. The issue is that the Founding Fathers could not foresee every eventuality, including the nation turning into the North American empire that it is today....
Thanks for the read, but I do not agree with your viewpoint.
If I recall, didn't the Civil Rights Act of 1964 also pass in a similar way to health care?
I will do more reading, and then we can have some good discourse...
Hey Mike, Thanks for not being a jerk - there are too many of those out there!
I have to utterly disagree with you on the Walmart thing - Just because an employer doesn't provide health care, or they fight against health care reform does NOT mean that they want to see people suffer.
Honestly, UHC, or whatever the system will be, does nothing but help out the insurance companies by creating cartels.
As far as Nike goes - sweat shops are, while disgusting by our standards, glorious to those in their country. The Sweat Shops pay upwards of 3 to 4 times the national average salary. The working conditions suck - but 3-4 times the national average!!! That would be like $120,000 in our standards (of course, this is a bit of an exaggeration, but still, 3-4 times the average wage!!).
The story of Wendy Diaz is a good one - she wrote to kathie lee in order to get her to try to make the work conditions better. Instead she and all of the media (and Congress) made a horribly big deal about it, and then enforced legislation that ended up preventing nike and other companies from using their labor. Diaz wrote that she regrets writing the letter, and now many of her friends have had to return to their previous jobs of child prostitution (she actually said this). (read more: http://mises.org/freemarket_detail.aspx?control=45 )
I'm not fully sure about the Civil Rights Act of 1964, but... lord knows that about 75% of what Congress does is Unconstitutional.
As far as the "founding fathers could not foresee every eventuality..." argument goes - that's why they put in a method of amending the Constitution!!! That's why the Amendment process exists!! I think it shows that UHC isn't really that desired - they can't get enough votes to amend the Constitution... so they just ignore it! MY copy of the Constitution doesn't have an expiration date.
As far as future reading goes - i DEMAND you read "economics in one lesson" - it's a beautifully simple book, and it will revolutionize the way you think about things. It did for me! I went through with a highlighter ready to highlight *only* the good stuff.... like two-thirds of the book is highlighted! If you're afraid of spending the 12 or whatever bucks to buy the book, you can watch a series of videos talking about it - just look up "economics in one lesson" on google videos, or youtube.
{picture this: dems pass a law that violates the constitution, It goes to the supreme court, The supreme court deems it against
the law, The People responsible are charged with treason. I'm no expert but could this happen?}
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Evan....Nike gets the labor laws that its money pays for...to the people who run the nations they work in....
This is called cronyism....and does not speak to their "national integrity."
Look at the maquilas in Juarez, and ask yourself...who is doing business there...where did those jobs come from....what does all this say for the "companies" who chose to set up shop there?
I still disagree with you about Walmart...the nation leader of employers with employees on food stamps, welfare, and other public assistance (especially health care related)...
I do not agree that much of our national actions have been unconstitutional at all... Let the Supreme Court lithmus test prove you right...
I do not like to be a jerk or rude....it doesn't do anything productive...
I save my sarcasm and angst for people like Sab Oh...and others you may be familiar with, who are idiots..
You are not in this category..
Take care..
One problem with letting the supreme court decide everything as Constitutional or not is that it is a part of the National Government. This allows the national government to continuously gain more and more power because there is no way for the States to prevent the usurpation of power (that is, if we only let the Supreme court decide on Constitutionality).
The Idea of Nullification and interposition, and even secession, were argued by T. Jefferson as the only hopes of preventing the federal government from ballooning out of power. I agree with him!
As far as cronyism goes, i've read Confessions of an Economic Hit Man, and I can definitely see how big companies can be a problem, but if you look at how the system operated - we try to buy you out, then we try to assassinate you with CIA operatives, then we try to invade your country - you'll see that the whole system relies on using the government to do the dirty work. Perkins seems to fail to realize that the reason why everything goes so horrible is because the government is involved.
I'm tired of nicely worded phrases just saying the same old thing as others stated. Eveyone has a point of view that shouldn't. Yes this is a free country but the more views the less progress. Our founding fathers were different but more of the same. Meaning different point of views, but were all owners of slaves. Those were the times and the time is now for us to look passed beliefs we know are wrong but are able to get away with. Was being a slave owner constitutional.
Rob:
I approved your comment, but I couldn't, for the life of me, understand it. Please reread your comments before posting them. I would (and this is not sarcasm, i swear) suggest using paragraphs and proper punctuation.
"Was being a slave owner constitutional." - Based on this statement - which is really a question - I can assume that you are against what I've written. The simple fact is that Slavery was outlawed in our country through a Constitutional Amendment (it would have been eradicated by simple economics, but slavery was finally outlawed by the Constitution). The people of the time used the Amendment process to alter the document. Our Congress is just ignoring the whole argument.
The Constitution is dead. No one cares about it anymore... and... we're paying the cost.
"Everyone has a point of view that shouldn't." This statement is actually a statement! But it is a statement of tyrannical logic that, if implemented, would ironically be Unconstitutional thanks to the First Amendment.
I'm sure that just about everyone has agreed with this statement, however. Who would be allowed to decide which point of view should be allowed to be expressed? Of course it would be you... ... ... ... right?
... but what if it weren't?
Very interesting. The Constitution does guarantee the right to life, liberty and the pursuit of happiness. Being unable to afford to see a Health Care professional when ill tends to take away happiness and can lead to death.
Medicare should also be anti-Constitutional using the same logic described here.
The Bill does not actually provide anyone with health care; it is about health insurance and insurance never equates care.
Part of the problem is Health Care lobbyists, such as Hoffman-La Roche who control Congress through campaign finances. 5 Supreme Court Justices just decided that corporations have citizen rights specifically to allow them to rule in D.C. through bought representatives.
In order to form a more perfect union ~ it seems to me that if a bunch of people decide they can rule over citizens (in any type of government) ~ taking care of or providing for those citizens needs needs to be part of said governements job.
Evan, if you look at the likes of William Walker, United Fruit, and others, I think you will find that a small federal government behaves in the same way that you described for the "big"....
With "small" Jeffersonian esq government we would have limited to no civil rights in this nation...amongst other things, let alone health care...
The Supreme Court's job is to ensure Constitutionality...I don't know what other body in this land is more able....this does not increase our dependence on government...rather this entity keeps citizens from running out and maiming/destroying one another... From Brown v. Board of Education to Hernandez v. Texas.....I am glad ongoingly for our courts and I look forward to the great work they perform in the future...
And I would much rather have a distinct court system, than follow in the paliamentary model of Britain..
Take care!
I do believe it will come down to the 10th Amendment and state's rights. I don't think they will go near the 13th Amendment, as we were discussing the other day. But only because if they do invoke the 13th, the entire house of cards will come down. It will call the 16th into question and a host of other "laws" that the powers-that-be don't want messed with.
And yes, a smaller govt is better. I just couldn't help but comment on what I read above -
"With "small" Jeffersonian esq government we would have limited to no civil rights in this nation..."
I'm astounded at the complete lack of understanding of our Bill of Rights. No wonder we're in the mess we're in!
Excellent hub Evan. I'm looking forward to reading more of your astute observations :)
It's just the corrupt wheel turning down the path of corruption, until we, the people, throw a spike in the governmental cogs. The more control the government gains over the citizens, the more disrupted and unhappy the citizenry will be.
This was a good, debatable hub. Oh, I must add, I agree with what Mike Long said about Wal-Mart; I was aware of that fact, a while back...
whoa, so many comments!! i'm not used to this!
alycerocco - indeed medicare and medicaid are unconstitutional. Also, the gov't might not be directly providing anything, but they don't have the right to legislate on that subject.
mikelong- the supreme court is a member of the federal government, so they are not impartial: they will gradually increase the amount of power the federal government has over time. Also, civil liberties can be easily protected with no government whatsoever.
Madame and Obsure - thanks!
you have certainly have stirred up the pot. I agree about the constitution being tossed aside. It seems that on this issue and many others that we forget it. Younger generations don't seem to know the constitution very well either and thus lack respect for our framers. Thanks for a great post that invoked so many opinions and thoughts.
Brilliant!
Great hub.
I would for one, like to enlighten everyone on some other parts of this legislation that are unconstitutional and were not touched on in this article.
For one thing, the bill requires people to purchase an insurance package if they do not previously have one, by penalty of law. The consequences would be a heavy fine, and if not paid, imprisonment. Since when was it constitutional to force a citizen to buy a good? It's NOT.UNCONSTITUTIONAL.
And although some people may argue that this is the same thing as purchasing car insurance, please remember that car insurance companies are private entities, not government run, nor do you HAVE to buy a car to make you buy insurance. This is a penalty over your HUMAN BODY. Definitely not the same thing.
What gets worse, and ALSO UNCONSTITUTIONAL, is that an acception is made for congress.The bill states that they do not have to follow these same rules of enforcement imposed on the people, or be forced to purchase any hc plans. Not to mention the countless other junk being tossed in there about education, the national id card, etc., that has NOTHING WHATSOEVER to do with health care reform.
Amazing, isn't it? Sounds a bit dictatorial to me. Hmmm.....just a thought for all you readers. I would hope it would motivate you all to write to your state senators, or at least strike a nerve of concern in you. 13 states are currently suing over legislation. Get active and help them out.
Good job Evan, keep doing what you are doing and distributing the facts. Truth will always win out, because it can't be disputed.
By this logic, schools are unconstitutional. NASA must be as well.
These are ideas that never occurred to the founding fathers. Medicine was a hit or miss activity and the idea of space travel was the stuff of science fiction. Some ideas are newer than the constitution; this is why the general welfare section exists. It is an acknowledgment that they didn't know what science or social conscience would dream up.
Yes, NASA is unconstitutional, the public school system (federally funded) IS unconstitutional. That would be accurate.
What... public schools are less than one hundred years old. And the first 10 or so presidents actually vetoed federal legislation funding interstate ROADS, of all things.
Yes, these things are unconstitutional, I'm glad we agree.
The reason why prices are so high in medicine would be because the federal government did something unconstitutional a long time ago. 1942 wage stabilization act, created the AMA (a monopoly on creating doctors), and many other unconstitutional things. These actions have skyrocketed prices, and now we're asking "yes sir, may I have another".
Things are going to get worse, any respectable economist would agree.
Your argument against universal health care fails.
And you have completly misrepresented the 10th amendment here.
Schools, Fire departments and Police are universal socialized services controlled by both state and federal government. So they must all be Unconstitutional and privatized by your argument because they are not mandated by the constitution. Well your wrong on several counts. Services don't need to have constitutional approval to exist. The 10th amendment just says the government doesn't have Explicit power to create these services but it IS left to the People to add and socialize these services and to ALLOW the goverment to control these services. The amendment means the goverment does not have a defacto domain it does NOT mean the goverment can not be given this power through the people. We have already done this with civil services so the point has already been proven.
Mike: If your argument is valid, how do the new laws and services and programs come about on the federal/state level? The answer: elected representatives write legislation to do so.
That means, then, that means that senators and representatives have the innate ability to vote however they want and create any service or program they want (by your logic).
Thus, when Caesar votes for dictatorship, he'll just say "it's the will of the people; I was elected by the people, and thus they gave me the authority to do so -- it was clearly their will. Why else would they have elected me?".
I'm afraid the only argument that fails is your own. The tenth amendment clearly states that the federal government's powers are expressly delegated to it in the Constitution. It also goes so far as to say that those powers not granted to the federal government are reserved for the states. And it goes on to say that the powers prohibited to both of those entities is reserved to the private sector.
And please don't rely on the "it exists, therefore it is Constitutional" argument... that just isn't a very powerful argument.
Just to go one step further, If Hitler were to be eleceted (somehow) into the presidency (he was elected, just not in the USA), and he put forth the same policies that were in place in Nazi Germany, then, daggunnit, the policies would be Constitutional... by your logic...
To even link universal heathcare with Nazi Germany is disgusting. universal healthcare had been in place in Germany for 62 years before the rise of Hitler. He had nothing to do with the policy and the Nazi's disagreed with it. But the popular support of the policy forced Adolf to keep it in place. Later changing it for only White Germans. To imply that universal heathcare is as evil as Nazi Germany is a outright lie, disgusting and offensive
I ... uhmm... wasn't... saying that Universal health care was of the Nazi persuasion. I was saying that the foolish argument that "well, because X has been federally funded for 100 years, it can't be unconstitutional" is a dumb argument.
... good job on that...
Preach it, brother! The Democrats didn't have the slightest intent of constitutionality - they don't see their oath of upholding the Constitution as meaningful in the slightest.
In the U.S. at least, states have control over education so it's not really unconstitutional. They do receive funding from the federal government however based on laws passed by congress which is a constitutional power. Federal funding makes up only a small part of school funding anyway.
I certainly wouldn't want to live in a state with no public schools. No developed country on earth doesn't have public education. Having no public education basically means that only the folks with rich parents can have the opportunity to get rich (and don't give me that if you work hard you can do anything crap. It's not true. If you don't even go to elementary school there is no way you can succeed at anything).
Your comment that slavery would have been rendered obsolete by economics (and insinuating that it would have been better to have let it be rather than add a constitutional amendment) is both naive and disturbing. Even with a constitutional amendment it took neigh a hundred years before black people could vote without being impeded by state laws. None of this progress had anything to do with economics.
I'm a little bit surprised that you lived in Japan and didn't rethink your views on a few of your ideas given how Japan has generally cheaper and more universal health care than the U.S. and is in general much more socialized. All in all, if you can get over the space constraints it's a pretty nice place to live.
Anyway, I'm not sure I can really agree with your libertarian view of the constitution as it's extremely impractical. The federal government wouldn't have the power to do anything really besides collect taxes and make an army without a full blown constitutional amendment and we would have to be amending the thing all the time just to solve problems. Large parts of the government couldn't exist, including NASA, the FBI, the FDA, the Air Force (Yes, the constitution only allows the creation of Army and Navy. Is the Air Force unconstitutional?). I mean we wouldn't even have interstate highways without a liberal interpretation of the constitution. You wouldn't be able to go to the next state over unless the elected leaders in neighboring states could get along (they didn't and that's why we have interstate highways). Not only would your interpretation be dangerous, it would make the U.S. uncompetitive, militarily and in education, and would create huge opportunity for corruption and exploitation.
We would have many of the things you claim we wouldn't have, they would just be owned privately.
Evan, thanks for your diligence in following this long thread of posts and supporting your positions with facts and logic.
Constitutionality aside (since that's the MO of government these days), when the then Speaker of the House, Nancy Pelosi stated, "We'll have to pass it to see what's in it" -- "it" being the 2500 page unread healthcare tome -- and President Obama defended the 2500 pages, saying, "These things are complicated", how could any rational person believe it could be good for our country? Nobody had read it! And if the passers of the bill believe(d) it is so good, why did they exempt themselves from it? I have yet to hear any government official give an answer to that question and would so love to know the answer.
I can think of MANY things that congress has done that does not fit the 'powers' spelled out for them by this amendment. Yet these other things are not deemed unconstitutional. Why? Because most of these things don't affect each citizen personally. Some people (mostly republicans) need to get over themselves and understand that without the people of this country, the country would not be. Stop thinking of only yourselves for once and open your eyes to the harsh reality that the world really does NOT actually revolve around you.
Hi Larry. Your comment was a bit void of both proper punctuation and substance.
I'm against all unconstitutional actions, including the green sheets of paper you call money. (Yes, paper money is unconstitutional).
In fact, I'm not even a Republican. I'm an anarchist.
The world does not revolve around me, but your comment leads me to think that mayhap it does around you.
Great Hub, Evan. You spelled out exactly why this bad law is unconstitutional and I liked the way you included the Tenth Amendment as part of your argument. This important amendment has been ignored and all but forgotten by too many in recent years.
Also, I really liked your response to Larry above.
kowality 2 years ago
Boy, you nailed it right on the head.The Constitution is getting battered and most of us have no clue of the longterm damage that is being done. Excellent hub Evan