OK, I know this article is too long. Sorry, what can I say? Look at it this way; I haven't written anything since mid January, so, perhaps I can just put it off as combining two articles into one. And maybe I won't write again until next month. But in the meantime, here goes...
To Support and Defend the Constitution
By John D. Turner
6 Feb 2010
I took that oath again when I entered the Federal Civil Service. In fact, any individual (the President excepted) who is elected or appointed to “an office of honor or profit” in the civil service or uniformed services, is required to take the oath.
The oath of office for the President is slightly different, and is specified in the Constitution of the United States itself.
You will note that the oath is not to the nation, the President, or any individual; it is in fact to the Constitution. It specifies no expiration date. It remains in force until you no longer hold the office that requires it. Some maintain that it never expires; it remains in force for the rest of your life. Surely, there is nothing that precludes that interpretation.
That "anyone elected" part includes all of our Federal elected Senators and Representatives. All have taken the oath. Those "appointed" include the members of the Supreme Court, and all public officials appointed to positions by the President, to include all cabinet members, and all the President’s "czars", for that matter.
When you join the Civil Service, you are “appointed” to the Federal Civil Service.
The military takes the oath very seriously. It is a sacred duty; an obligation. We shed our blood, sweat, and tears for it. It represents the preservation of the free society in which we live. The Congress? Not so much, I think. Apparently to many of them, it is merely a formality of office that must be adhered to before one gets down to the brass tacks of bestowing favor upon friends and contributors, and condemnation upon enemies, and those who would stand in their way.
One would think, having taken an oath to support and defend the document, one might want to be conversant with what is actually in the document. How much more so, when your job is to enact legislation? The Constitution is a blueprint. It sets forth how the government is to be established, the duties and responsibilities of each branch of government, and enumerates the powers possessed by each.
The Constitution is very specific. Unlike every other society in the world at that time, our constitution does not enumerate rights that are granted by the government to its citizens. Rather it enumerates powers that the government has, which were granted them by the People. If a particular power is not spelled out in the Constitution, the government does not have that power, unless the power is granted to the government by the people. This is done in the form of an amendment.
These things were understood by the framers at the time the document was written. Nevertheless, there were some who felt that certain rights needed to be enumerated so that, with the passage of time, the government didn’t conveniently “forget” that they were held inherently by the people, and not “granted” by the government. For this purpose, the first 10 amendments, known as “the Bill of Rights”, were penned and added to the Constitution in 1791.
There were those who felt that adding this Bill of Rights was unnecessary, as it simply stated what everyone already knew; there was no value added. Others opposed it because they were afraid that the enumeration of any rights by the government would ultimately lead to the perception that these were rights granted by the government. This, they felt, might lead to a situation whereby the government felt it could revoke those rights, or insist that any other rights the people currently enjoyed that were not enumerated were in fact not rights at all, but government indulgences which could be trampled upon at will.
The ninth amendment, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people,” and 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,” were added to attempt to make clear the limitations of the federal government upon the people of the United States.
Government of the People, by the People, and for the People was intended to be more than just a flowery catch-phrase. It is no accident that the document begins “We the People” in large letters; it does not say “We the Congress.”
One would think that elected officials should become, if they are not when elected, well acquainted with the Constitution. After all, it is their job description. And they did take an oath to support and defend the document.
However, Senators and Representatives, even Presidents take many oaths, one of which is the one they take when they marry. And many have problems with that oath as well, it seems. But I digress…
Which brings us to the great Health Care debate, and the mandate in the current legislation for every American to purchase health insurance or suffer a fine.
Now you might think this a good idea. You might be able to put forth, in fact, a very good argument why every American should carry health insurance. And you might be correct. However, nowhere in the Constitution, the blueprint for how government is to function, is there any mention of any power possessed by any branch of government to force an American citizen to buy or obtain anything. It simply isn’t there.
Recall 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.”
The States can enact such legislation, and frequently do. The requirement to have a driver’s license, and to purchase automobile insurance are two examples. But even in those examples, everyone is not required to do so, only those who wish to avail themselves of the privilege of driving a motor vehicle on public roads.
But the Federal government may not. It’s not one of the powers enumerated and granted to them by the Constitution of the United States, much as they might wish it were there, or think that it should be there. Since it is not an enumerated power, it is reserved to the States or to the people. In other words, it’s up to the States to decide if they want to make people buy health insurance, and if they decide not to, then it is up to the people, individually, to decide if they want to buy health insurance or not.
Ultimately, most things come down to whether or not we as individuals want to do something or not. It’s called “freedom of choice.” It’s one of the founding principles of our country; that we as individuals are in charge of our destiny, not the government.
But what in fact, do our elected representatives, specifically those in the Senate, think about this? CNS News decided to find out. Recently, they asked the question of Senators, “Where does the Constitution authorize Congress to force individuals to buy health insurance?”
This is an important question. This is precedence setting legislation. Never before in the history of the United States has congress ever forced individual Americans to buy any good or service. And you know how precedents work. If they can do it with health care, they can do it with anything once the precedent has been set.
The answers they got are nothing short of astonishing to me. Remember, these are elected officials, elected by we the people, who have taken an oath to support and defend the Constitution of the United States. Most of those presented are Democrats. This is not to pick on Democrats. At the time the question was asked, they had the power to pass the legislation all by themselves without any support from the Republicans (of which they had none). The ball was in their court, and as a result, in reality only their opinion on this matter made any difference. Here is a brief synopsis of what they said. You can go to the actual webpage and see the videos if you like.
Senator Patrick Leahy (D.-VT.) “We have plenty of authority…why would you say there is no authority? I mean, there’s no question there’s authority. Nobody questions that.” Obviously, Senator Leahy, there must be some question or else this reporter would not be questioning it, as should any American citizen that actually reads the Constitution.
House Speaker Nancy Pelosi (D.-CA) “Are you serious? Are you serious” Yes, Madam Speaker, we are serious. Is that answer the best you can do?
Senator Mark Warner (D. –VA) “There is no place in the Constitution that talks about you ought to have the right to get a telephone, but we have made those choices as a country over the years.” So, Senator Warner believes that congress has given us the “right” to buy a telephone? The fact that congress passes a law in the first place apparently gives Congress the right to require us to do whatever they want in Senator Warner’s eyes.
Senator Bob Casey (D.-PA) “Well, I don’t know if there’s a specific constitutional provision.” Well guess what Senator Casey, if there isn’t, then you are not supposed to. Perhaps you should pick up a copy, read it, and find out? You did take an oath to support it…
Senator Daniel Akaka (D.-Hawaii) “I’m not aware of that—let me put it that way…Not in particular with health insurance. It’s not covered in that respect.” Bravo Senator Akaka! You have the correct answer! So why, pray tell, in view of the oath you took that I keep mentioning, are you voting for something that is clearly unconstitutional?
Senator Roland Burris (D.-IL) “Well, that’s under certainly the laws of the –protect the health, welfare of the country. That’s under the Constitution. We’re not even dealing with constitutionality here. Should we move in that direction? What does the Constitution say? To provide for the health welfare and the defense of the country.”
Well, not exactly, Senator Burris. What you are no-doubt fumbling around for is the verbiage put forth in the preamble to the Constitution, which, as stated correctly in Wikipedia, is “a brief introductory statement of the fundamental purposes and guiding principles that the Constitution is meant to serve”. Key statements: Introductory statement. Fundamental purposes. Guiding principles. What it is not: Actionable legal authority. You will find other senators seemingly confused on this point. In fact, many Americans at large seem to not understand this point. I can only believe it is not being taught correctly in our nation’s public schools. More on this topic later. Keeping with Senator Burris’s remarks, not dealing with constitutionality here? Are you serious? What in your mind then would be an issue of constitutionality?
The best we can say for the good people of Illinois is that they didn’t put Senator Burris in the senate with their vote in the first place. No, the good Senator Burris was appointed to this position by the now resigned in disgrace Governor Blagojevich. ‘Nuff said.
Senator Jack Reed (D.-RI) “Let me see. I would have to check the specific sections. So, I’ll have to get back to you on the specific section. But it is not unusual that the Congress has required individuals to do things, like sign up for the draft.” Ah yes. The draft. Of course, everyone is not required to sign up for the draft. Females are excluded. So are males who fall outside the age requirements. And there were deferments of various types; some people, by virtue of physical disability or ailment, were exempt from military service. And you are not required to purchase anything.
The draft has always been controversial, every time it has been instituted. There have always been those who questioned its constitutionality. However the Constitution does give the authority to Congress to “raise and support Armies.” The exact mechanism is not specified, however one has to concede that the ability to “raise and support Armies” has to be accomplished somehow. The power to raise and support armies is granted to the Congress by the Constitution. A draft is simply an enabling mechanism. So yes, Senator Reed, the Constitution says the federal government can do this. But just because the government is empowered to do one thing does not mean it is empowered to do everything. Go back and re-read amendment 10 again.
But that’s OK. Senator Reed may not be exactly sure where the power to do this lies within that massive tome that is the Constitution (all 35 pages in my copy, as compared to over 2000 pages in the Health Care legislation), but don’t worry; he’ll “get back with us on that.”
Senator Bernard Sanders (I.-VT) “Where in the Constitution? Probably the same place that comes Medicare and Medicaid and the CHIP program and the Veterans Administration, and the health care programs that we’ve been doing for many, many decades.”
Actually Senator Sanders, I can’t find the reference to any of those programs anywhere in my copy of the Constitution. But then again, I received my copy back in 1989 from President George H.W. Bush. All members of the armed forces received a copy in honor of the 200th anniversary of the ratification of the Constitution. Perhaps my copy, being from President Bush, is different from your copy…
Senator Sherrod Brown (D.-Ohio) “The same part of the Constitution that allows us to have Medicare. When I hear people that think this is a constitutional issue, my first question to them is, ‘Do you want to repeal Medicare?’ And some people, politically, are so extreme in this country that they want to repeal Medicare, and I think they’re dead wrong.” Seems Senator Sanders and Senator Brown think alike. Unfortunately, the clause they are citing doesn’t seem to exist; the Constitution does not require Congress to establish Medicare, list it as a power the Congress is imbued with, or mention it or anything like it at all.
This tactic, by the way, is called “Bait and Switch”. The question wasn’t whether Medicare is unconstitutional, or whether or not we should repeal Medicare, but rather it was about whether or not Congress has the constitutional authority to require an American Citizen to purchase a given good or service, specifically health care insurance. When you don’t have an answer to the question, answer a different question and attack! That will buy you enough time to escape and not have to answer. Senator Brown proves himself the consummate politician.
Senator Claire McCaskill (D.-MO) “Well the – we have all kinds of places where the government has gotten involved with health care and mandating insurance. In most states, the government mandates the buying of car insurance, and I can assure everyone that if anything in this bill is unconstitutional, the Supreme Court will weigh in.” Well, Senator, state laws are a different issue entirely. States are governed by their respective state constitutions which have nothing to do with the federal constitution, which is the topic at hand. However, as we have already discussed the auto insurance issue above (constitutional if done by the states, as it is), let’s move on to the Supreme Court, who Senator McCaskill is confident will “weigh in” if necessary.
First off, the Supreme Court doesn’t just “weigh in.” A case has to be brought before it, and it has to agree to hear the case before a judgment is made. Before that, the law has to actually be passed. And until the Supreme Court makes its weighty decision, the law is in effect.
Apparently Senator McCaskill thinks she can pass anything she wants and as long as the Supreme Court doesn't "weigh in", it's OK. It makes life a bit easier if one doesn't have to worry about the messy business of ascertaining whether or not what you are doing is constitutional; just rely on the Supreme Court to decide if what you are doing is, in fact, legal. No need to do your job Senator, and take seriously that oath you swore; just fob the job off on someone else and get on with your business.
Senator Jeff Merkley (D.-OR) “The very first enumerated power is power to provide for the common defense and the general welfare. So it’s right on, right on the front end.” Well, maybe Senator Merkley is on to something here. Article 1 Section 8 enumerates the powers embodied in the Congress, of which Senator Merkley is a member. The first of those is “the power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the Common defense and general Welfare of the United States;”
Senator Merkley is justifying the Health Care provision on the basis of providing for “the general welfare.” “The general welfare” is a pretty broad term. Over the years it has become a pretty elastic term as well. What does the “general welfare” mean? Pretty much anything according to some. But what did the framers think it meant? What did Madison think it meant? He wrote much of the document, and is credited with being “the father of the Constitution.”
According to Madison, “If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may appoint teachers in every State, county and parish and pay them out of the public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision of the poor; they may undertake the regulation of all roads other than post-roads; in short, every thing, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress…Were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited Government established by the people of America.”
Apparently, Madison was no fan of “big government”. Likewise, it is also apparent that he did not view the “general welfare” clause to be an open-ended loophole through which government could expand ad infinitum. Indeed, Madison is also quoted in Federalist Paper 45 as saying, “The powers delegated…to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, [such] as war, peace, negotiation, and foreign commerce. …The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people.”
It is instructive to note that what was meant by the founders by the term “general welfare” and what it is understood by some to mean today, particularly progressive democrats; the two are 180 degrees apart. As I have heard from many sources, "words mean things." It may seem a trite saying, but it is undeniably true. What is important is not the words themselves, but what the words are understood to mean. And if we are not to change the meaning of the document, we need to understand what the words mean in the context of the time, not what our current meaning assigned to the same words may be.
Senator Dianne Feinstein (D.-CA) “Well, I would assume it would be in the Commerce clause of the Constitution. That’s how Congress legislates all kinds of various programs.” So. We move from the General Welfare clause to the Commerce clause! Senator Feinstein is correct when she states that the Commerce clause is used by congress to justify all sorts of legislation. If it crosses a state line or could by any stretch of the imagination be assumed possible to cross a state line, Congress assumes the power to pass such legislation by virtue of the Commerce clause.
So what does the Commerce clause say? It is found in article 8 section 1 as well, the section that enumerates the powers of Congress, and states that Congress has the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”
Gee. That sounds pretty open-ended. What does it mean “to regulate commerce…among the several States”, which would be the pertinent part of this clause? Well, for consistency, let’s look at Madison again and see what he said the Commerce clause was intended to do.
“Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the nonimporting, 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 which alone, however, the remedial power could be lodged.” – Letter to Cabell, Feb 13, 1829.
So the original intent was not to grant power to Congress at all. It was intended to be used to solve trade disputes among the states, among nations, and among the Federal government and the Indian Tribes. It was not designed to set up massive regulation of trade, central economic planning and limitless government. This is logical, as it would be impossible to impose such on foreign governments or the Indian Tribes (who are supposed to be independent nations); why then should such regulation apply to the States? And it certainly was not intended to be used to mandate purchase of health insurance (or anything else) by all Americans.
Senator Kent Conrad (D.-ND) “No, but I’ll refer you to the legal counsel for the Senate and they’re the ones that lead there as the full legal basis for the individual mandate—and I assume it’s in the Commerce clause.”
Senator Mary Landrieu (D.-LA) “Well, we’re very lucky as members of the Senate to have constitutional lawyers on our staff, so I’ll let them answer that.”
Senator Conrad admits he doesn’t know. Senator Landrieu, as usual, is as clueless as she was during Katrina. Both of them point us to lawyers as the final authority. Translation? “I don’t know and I really don’t give a damn. Stop wasting my time.”
Senator Ben Nelson (D.-NE) “Well, you know, I don’t know that I ‘m a constitutional scholar. So I, I’m not going to be able to answer that question.” Really? Then I guess your protests against the Health Care bill had nothing to do with principle, as you tried to make us believe, but actually were just all about what you could get out of the deal for your state. Good job Mr. Nelson! I bet your fellow Democrats who came away with nothing are green with envy.
That’s all for the Dems. The most truthful answer of the day had to come from Senator Richard Lugar. Of course, Senator Lugar is a Republican (R.-IN). His response was short, sweet and to the point: “I don’t have any idea.”
And neither do I.
Do we see a common thread here? How is it that we are electing people to pass laws in this country, who swear to uphold and defend the Constitution, who not only clueless about what it says, but who really could care less? Particularly when that document is basically a blueprint for their job description?
I think Sen McCain (R.-AZ) (of whom I am no great fan and with whom I have serious issues in other areas) answered the question best; “That is an excellent question, and I’m sure that if they pass health care legislation, I think there would be a challenge.”
A challenge? Most assuredly. However, as Mr. Bush found out when he signed Campaign Finance Reform into law (a McCain initiative incidentally), expressing the opinion that it would be found unconstitutional, you can never predict what the Supreme Court is going to do, particularly as they seem to be basing decisions not on what the document actually says, or what the framers wrote concerning it, but rather on decisions made since it was established, constitutions of other countries, personal preferences, ideas about social justice, and readings of tea leaves and the entrails of small animals for all I know.
Why not, instead of leaving it up to the ruminations of nine individuals who were appointed to their positions, serve for life, and are unaccountable to the American people, instead do your jobs? Congress, don’t pass unconstitutional legislation. Executive, don’t sign it. All of you; live up to the oath you swore. Read and understand the document you swore to support and defend.
We in the military do.
And Americans everywhere. Do the same. And make sure your elected representatives do as well.