Before government can guarantee provision of a specific good or service to any one individual, thus creating a so-called “positive right,” it must first take by force the means of producing that very good or service from someone else.

Health care is no different. Whether by forcibly appropriating and redistributing the money to purchase care for those who lack it, or by arbitrarily devaluing the time and effort of those who provide it, once a government mandate supplants voluntary exchange, coercion must be used to exercise that “right” to health care.

But how can taking what belongs to another person (their money, time, or effort) through legislative force be a right?

Is that not the very essence of slavery?

The truth is that the only rights actually guaranteed to Americans by the Constitution are those that protect freedom of action.

They are “negative rights,” which do exactly the opposite of their positive counterparts. Rather than initiate and rely on the use of force to produce a specific reward or outcome, negative rights allow individuals to act or not act in the absence of coercion, so long as they do not hinder the freedom of others to do the same.

For instance, it is the right of people in this country to vocalize unpopular opinions, associate with unpopular people, practice unpopular religions, and even carry unpopular weapons. Thanks to our negative rights the government cannot, without due process, take the life, liberty, or property of any American.

But nowhere in the Constitution does it say that, in order to exercise their rights, each citizen must at birth be given a microphone, a bible, or a gun.

That was no accident. For more than two hundred years, the freedom and responsibility to determine one’s own future has been the foundation of America’s unparalleled success. But the critical role played by our negative rights has become less and less clearly understood over time.

Many of this country’s most celebrated leaders have manipulated that ignorance, redefining rights as unearned rewards for politically favored groups; payoffs thinly veiled in the pious rhetoric of social justice.

FDR himself was among the worst. The abject failure of the New Deal notwithstanding, FDR proposed to codify his authoritarian progressive agenda in a constitutional amendment, known as the “Economic Bill of Rights.”

It reads like a list that could just as easily have flowed from the pen of Karl Marx:

The right to a useful and remunerative job…

The right to earn enough to provide adequate food and clothing and recreation;

The right of every farmer to raise and sell his products at a return which will give him and his family a decent living;

The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition…

The right of every family to a decent home;

The right to adequate medical care…

The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment;

The right to a good education.

Besides being, as any citizen of the former Soviet Union can attest, economically disastrous and utterly impossible to define or achieve, the biggest problem with FDR’s list was that it sought to make America into a nation of serfs.

The logic is inescapable. Once something has been deemed a right by those in government, the ability of every person who produces or consumes that good or service to engage in voluntary transactions with the fruit of their own labor is stolen. Their labor is then owned and administered by agents of the collective.

Again, I ask: Is that not the very essence of slavery?

There is no doubt that freedom entails risk, and America has not always lived up to the promise of her founding. But when certain people or groups pervert the notion of rights, harnessing the power of government to take by force what they desire but have not earned, then negative freedom becomes a positive tyranny.

Let us hope that more Americans, before it is too late, learn how to tell the difference.

Josh is a proud “tenther”, freelance writer, and activist originally from the Washington, D.C. area.

The Campaign for Liberty has stepped to the plate big time in Virginia, getting out ahead of the feds and finding a sponsor for the Virginia Health Care Freedom Act, to be introduced in 2010.

The Act reads, in part:

Neither the Governor nor the Department of Health, the Department of Public Welfare or any other Commonwealth agency shall participate in the compliance with any Federal law, regulation or policy that would compromise the freedom of choice in health care of any resident of this Commonwealth.

Man, just copying and pasting that feels great.

Delegate Bob Marshall (VA-13) deserves credit for agreeing to carry this critical legislation. Now is the time for Virginians to start contacting their state representatives to inform them about the measure and ask for their support should ObamaCare make it out of the Senate.

Credit is also due to Delegate Charles Carrico (VA-5), who has agreed to carry the Virginia Firearms Freedom Act, which is similar to recent measures adopted in Tennessee and Montana.

In marked contrast to the health care “reform” legislation recently passed by the House, neither of these bills exceeds three pages.

This is great news for those in Virginia who still cling to the Constitution, but introducing these bills is just the beginning. Victory will require inexhaustible passion and energy since, as always, we must give our state legislators the courage to defend our freedoms.

And it will take political courage. Nancy Pelosi has already said that even if such measures pass at the state level, the federal government has the authority to impose its will upon the voters anyway. Then stick us with the bill, of course.

Try finding that one in the Constitution.

Thanks, but no thanks, Nancy.

Like the signs say: We’ll keep our money, guns, and freedom; you keep the change.

Recently, the U.S. Speaker of the House, Nancy Pelosi, responding to a reporter’s question of whether the Constitution gave Congress the authority to enact individual health insurance mandate, kept repeating, “Are you serious?”

Now, let’s give Speaker Pelosi the benefit of the doubt and attribute her impolite reply to simple disbelief. In fact, from her point of view her authority is unchallenged per a September press release, and many others such as Politico’s Erwin Chemerinsky and even the contemporary Supreme Court agree. From her press release, Pelosi states:

“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.“

The Speaker is certainly correct that federal Congress has certainly legislated on “many aspects of American life.”  In fact, there is a lot more at stake with the Commerce Clause than “just” our health care — the entire authority for economic central planning rests on this single clause. I strongly disagree with Pelosi that the Constitution allows Congress broad power in this respect. First, the exact language from my job description in Powers of Congress, Article I, Section 8, Clause 3:

“The Congress shall have Power… to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

Pelosi believes that she has the power to “regulate Commerce… among the several States” and I suggest that in blunt language she instead literally means to “control the economy… of the States.”  Pelosi and her ilk accomplish this by confusing the modern meanings with the legal meaning and contemporary context of the founders.

Regulation, in today’s dictionaries, means “a governmental order having the force of law.” However, this is not the historical definition.  The founders believed “regulate” to literally mean ‘to make more regular’ or, per Black’s Law Dictionary at the time, “a rule or order prescribed for management or government; a regulating principle; a precept.” In other words, regulate meant that Congress should in principle assist with Commerce disputes between the States, but did not grant Congress the power of law to inflict criminal penalties. This is most clearly seen in Article 2 of the Kentucky Resolutions of 1798 written by Thomas Jefferson.

Next, although the Federalist Papers are not legal documents, they do serve as public demonstrations of the founders’ intentions as they were part of a series of essays published to explain the Constitution to the public before its’ ratification. James Madison in Federalist #42 wrote:

“The defect[s] of power in the existing Confederacy to regulate the commerce between its several members… [has] been clearly pointed out by experience… It may be added that without this supplemental provision, the great and essential power of regulating foreign commerce would have been incomplete and ineffectual. A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquillity… it would stimulate the injured party, by resentment as well as interest, to resort to less convenient channels for their foreign trade… The necessity of a superintending authority over the reciprocal trade of confederated States, has been illustrated by other examples as well as our own. In Switzerland, where the Union is so very slight, each canton is obliged to allow to merchandises a passage through its jurisdiction into other cantons, without an augmentation of the tolls.”

A modern example of “unregulated” Commerce by the founder’s meaning would be manufacturing companies in the interior of India, which has 28 states. As goods move by rail or truck from interior states to a seaport in a coastal state, each state assesses its own tariff at its border which rightly leads to “animosities” and a “less convenient channel” for foreign trade. But what did the founders mean by ‘Commerce’?

Within the last century, several American lawyers have claimed the founder’s definition of commerce was “all gainful activities” or “all human interactions.” This has been taken by the leviathan federal Government as authority to control not just health care, but the minimum wage, manufacturing, agriculture, the mining, oil and lumber industries, possession of firearms, land use, criminal law such as federal drug laws, and environmental protection, in most cases usurping states’ rights per the 10th Amendment and in some cases even inventing jurisdictions.

Fortunately, Dr. Robert Natelson wrote a well-documented paper “The Legal Meaning of ‘Commerce’ in the Commerce Clause” in 1996. After examining thousands of instances of ‘Commerce’ used in contemporary legal documents, Natelson concluded that commerce simply and exclusively meant “exchange” or “traffic” and its associated activities, such as navigation, to the founders. In simple English, commerce benefits agriculture or manufacturing, but does not include either agriculture or manufacturing. Furthermore, Natelson notes:

“If we read “Commerce among the several States” to mean “all gainful economic activity among the several States,” then the clauses by which Congress is empowered to regulate commerce with “foreign Nations” and the “Indian Tribes” become either largely redundant or nonsensical. Even more seriously, if the Commerce Clause grants Congress power to regulate all economic activities, then some of Congress’ other economic powers become surplus.”

So, if the Commerce Clause gave Congress economic central planning authority, many of the powers listed in the Constitutionwould be redundant. The powers of Congress over postal roads and offices, dockyards, intellectual property, and more would be repetitive if the power was already enumerated in the Commerce Clause. During the Federalist Papers debate, one would have expected the Commerce Clause to have been hotly debated by the anti-Federalists if it had been truly intended to give unlimited power over all gainful economic activities to the federal government. Federalist #42 would not have been able to dodge such a huge stripping of power from the States. What do we hear from the historical record? Silence, which indicates that this was a non-issue.

Natelson goes into a lot more detail than I have, and it is much easier to shred the other constitutional references given to support government infringement into health care.  Please read my Health Care plank which also links to the Constitution of the USSR (which DOES authorize government involvement in health care) and this great discussion on the “General Welfare” clause.

The “Necessary and Proper” clause is briefly dismissed by the referenced Natelson paper, but more strongly in his other papers. In short, Pelosi and the rest of Congress simply MUST have a constitutional amendment passed before legislating on health care. Their actions in Congress are highly illegal, and is one of many unconstitutional and illegal acts committed against the American people by Congress.  Since no help can be expected from the appointed-for-life Supreme Court, the last defense, really the only defense, is that of We the People ourselves.

So in formal reply to Speaker Pelosi, even the notion of federal government authority over the health care of the American people is completely absurd. My reply is: “Madame Speaker, are YOU serious?”

Jake Towne, “The Champion of the Constitution,” is running for U.S. Congress in Pennsylvania’s 15th District in the 2010 election as a citizen unaffiliated with any political parties.  Jake is a columnist at NolanChart, and also contributes to LibertyMaven and CampaignForLiberty.

Let’s begin at the beginning. Medical care is not a free good found in nature. Of course, no one really thinks it is. But that doesn’t keep most people from wanting to pretend otherwise, and the current institutional setting makes that possible. After a while, one forgets one is pretending. Yet medical care goes on being a collection of produced goods and services — subject to the laws of supply and demand, and requiring resources and labor that come with opportunity costs. Therein lies the problem.

Medical insurance has come to mean getting something for free. The receiver of a service need not ask how it is financed. It’s just taken care of. (Passive voice intentional.) Yes, somebody gets paid, and the money comes from somewhere. That’s okay, as long as it doesn’t come from the covered party. (What would be the point of having insurance?) Don’t bother us with such matters.

Let us believe it’s free. Let the insurer figure out the rest. But he’d better keep that coverage going. And don’t hassle us by not paying all bills eagerly and unquestioningly. That’s what he’s there for. Just reassure us that whatever services we consume will be taken care of. We don’t want to know the details. What’s that? The government is promising to cap our out-of-pocket expenses, require coverage for preexisting illness and free preventative care, and extend the same deal to absolutely everyone? And this will have no negative consequences whatever, such as limits on what we can buy or enlargement of the budget deficit or higher taxes for the middle class — but it will actually save money? Oh thank you, government!

This irresponsible mindset, which is similar to a not-very-inquisitive child’s, is what at least two generations of government intervention in health care — and the welfare state in general — have produced in the American people. Thus the welfare state retards moral and intellectual development. We expect the State — our surrogate parent — to make it all right. The demagogues we call politicians are happy to feed this attitude because it provides occasions for the expansion and exercise of raw power while seeming, like Santa Claus, to give away free goods. Of such things long political careers are made.

Something for Nothing

The healthcare “reform” juggernaut seems to be on an irresistible course. The 1,990-page (!) bill (pdf) released by the House leadership yesterday is just the latest variation on the corrupt something-for-nothing theme. The details obscure the big picture. A modest public option instead of a robust public option? Blah blah blah blah blah. The government-run insurance “alternative” was always more signal than substance.

Why do you need a government “competitor” if the government will be dictating every detail of the private insurance business under any circumstances? What motivates the public option, I submit, is sheer hatred of private, for-profit business in the medical industry. Of course, we don’t have purely private, for-profit insurance companies — every state government runs a regulated, protectionist insurance cartel. (That’s why the feds exempted the insurance industry from antitrust; it was a favor to the state regulators.)

But the public-option advocates would oppose truly free-market insurance companies. Their true preference is a government monopoly — which is why it is so funny to hear them praise “choice and competition.” That’s the last thing they want, but they know that the American people won’t accept their single-payer scheme. Anyone who really wanted choice and competition would at least support legalizing interstate insurance sales. The silence about that is deafening.

Most people get their insurance through their employer, so they won’t have the option of the public option anyway. One of the biggest sources of trouble in the healthcare system is employer-purchased insurance — it cuts the consumer out of decision-making. Yet this bill, and all the others, strengthen that perverse system. Some reform. Despite the squawking, the insurance companies love the idea of forcing people to buy their products. The corporate state thrives.

Like an uninquisitive child, most people seem willing to believe politicians when they promise to subsidize and compel the use of medical “insurance” while reducing prices without controlling choices. And while they’re at it, they’ll cut the budget deficit and boost economic growth. One shouldn’t have to be an economist to smell a scam. Exactly how is that supposed to work? They’ll get the money out of Medicare — without degrading the service — and they’ll tax millionaires, while fining employers who don’t provide insurance and those of us who don’t buy it. Since the American people aren’t rolling on the floor laughing their you-know-whats off, I can only conclude that the government’s schools have so dumbed them down that they have no trouble swallowing this patent nonsense.

A final word about the nearly 2,000-page bill. Others have said it, but it needs to be repeated. No one will be able to understand all the implications and consequences of a government attempt to design 15 percent of the U.S. economy. Heck, few will read — and grasp– the bill in its entirety. (You also have to read all the statutes that are amended by the bill.) Enacting laws that no one comprehends, and that turn over yet-to-be defined powers to others, wouldn’t seem to satisfy the criteria of self-government, the consent of the governed, the rule of law, or any of the other political myths we live by.

I don’t how any theory of political obligation rooted in popular sovereignty that could regard this bill as morally binding when it becomes “law.” The process mocks the philosophy expressed in the Declaration of Independence. It insults the intelligence. It disgraces everything decent about this country.

Federalism and Tenth Amendment state’s rights have been under assault since the days of FDR.

The federal government was created to serve the states and, in the words of James Madison, “to be exercised principally on external objects, as war, peace, negotiation, and foreign commerce.”   Under the Tenth 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.

The astute constitutional student will recognize that there is no authority whatsoever under Article 1 Section 8 of the U.S. Constitution (the part of the Constitution which outlines the powers of the federal government) to create or administer a health care system.

In the past year, several states have moved to assert their rights under the Tenth Amendment. States such as South Dakota, Tennessee, Texas, Louisiana, North Dakota, Alaska, Idaho, Oklahoma and more have passed resolutions telling the federal government to keep its paws off areas that don’t belong to it.

Alabama has specifically moved to short-circuit the federal government’s plan to cripple the country under the cap and trade global warming tax.  Other states such as Arizona, Florida, and Texas are moving to specifically tell the federal government if they pass socialized health care, it isn’t going to fly in their states.

More states–and more work–may be needed, given what the socialists in congress and the White House have in mind.

The Heritage Foundation has an analysis of how Obamacare would hit federalism and state’s rights hard.

State flexibility regulations will be removed, making states merely administrative arms of the federal government’s bidding

If congress succeeds in raising eligibility to 133% of poverty in the final bill (if it passes, God forbid), 33 states could see their Medicare rolls increase 30%, with 10 states seeing an increase of 50%. And since–contrary to a popular conception–government can’t create money out of thin air, guess who gets to pay for that?  What will it look like if they raise it to 150% of poverty?  Got your wallet handy?

There are any number of real reform actions congress could take if only they wanted to; these involve real solutions like tort reform, promoting consumer involvement and choice, making insurance more portable, etc.

But they don’t want to improve the system and get it back within constitutional parameters and into the realm of common sense.

Their goal is to push socialized health care on America, and they’ll do it in a big step or several smaller ones.  We the people must not allow them to take even small steps in that direction.  We’re already too close to the lip of that socialist abyss.

Bob Ellis [send him email] is the founder and editor of Dakota Voice.

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 “Nation’s” 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://www.tenthamendmentcenter.com/2009/09/17/pelosis-misleading-statement-on-the-constitutionality-of-government-health-care/feed/ 43 http://www.tenthamendmentcenter.com/2009/09/15/opting-out-of-national-health-care-in-ga/ http://www.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

Andrew Napolitano: “There are limited, delegated and discreet powers of Congress in the Contitution…how can the government take over health care and still comply with the Constitution?”