General welfare clause - Tilted Forum Project Discussion Community

dksuddeth · 10-29-2009, 11:21 AM

This has been brought up in several discussions by various people to support the constitutionality of congressionally mandated health insurance. I submit the following to refute that claim.

Quote:

The Taxing Clause, using the words "general Welfare," (Art. I, Sec. 8) states: "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 . . ."

Hamilton always denied that this clause gives Congress a general legislative authority--to legislate regarding, and so as to achieve, whatever Congress might consider to be for the common good. He never varied from his assertion in The Federalist number 83, regarding the plan of the Framing Convention expressed in the Constitution, with regard to such authority, as follows:

"The plan of the convention declares that the power of congress or in other words of the national legislature, shall extend to certain enumerated cases. This specification of particulars 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." (Emphasis per original.)

Hamilton never contended for--indeed, he evidently would have opposed strenuously--use of the Federal power to tax and spend so as in effect to give the Federal government indirectly any control over anything, or anybody, which is not directly and openly authorized by the Constitution and its amendments through enumeration of the powers granted to it by the people. He would undoubtedly have agreed with the distinction which Jefferson drew--in the above-mentioned addresses made after Hamilton's death--with regard to Federal aid to Education: that land-grants in aid of education are constitutional, partly because they could not possibly produce any degree of control over the recipient institutions due to such grants being a single-transaction measure as to each of the recipient institutions.

Limited Government In Relation to Some Fields of Power Prohibited to the Federal Government

Baraka_Guru · 10-29-2009, 12:00 PM

I offer this. I'm don't know much about the American Constitution, so bear with me.

Quote:

The phrase ["General Welfare"] is as comprehensive as any that could have been used; because it was not fit that the constitutional authority of the Union, to appropriate its revenues shou'd have been restricted within narrower limits than the "General Welfare" and because this necessarily embraces a vast variety of particulars, which are susceptible neither of specification nor of definition.

It is therefore of necessity left to the discretion of the National Legislature, to pronounce, upon the objects, which concern the general Welfare, and for which under that description, an appropriation of money is requisite and proper. And there seems to be no room for a doubt that whatever concerns the general Interests of learning of Agriculture of Manufactures and of Commerce are within the sphere of the national Councils as far as regards an application of Money.

The only qualification of the generallity of the Phrase in question, which seems to be admissible, is this--That the object to which an appropriation of money is to be made be General and not local; its operation extending in fact, or by possibility, throughout the Union, and not being confined to a particular spot.

No objection ought to arise to this construction from a supposition that it would imply a power to do whatever else should appear to Congress conducive to the General Welfare. A power to appropriate money with this latitude which is granted too in express terms would not carry a power to do any other thing, not authorised in the constitution, either expressly or by fair implication.

Article 1, Section 8, Clause 1: Alexander Hamilton, Report on Manufactures

From what I gather, this is Hamilton on the subject of commerce (i.e. manufacturing) and the need to spend tax money within it for the "General Welfare" of the U.S. There is reference to the interest of "learning of Agriculture of Manufactures and of Commerce." So, generally, he is in favour of defining the "General Welfare" as spending money to support agriculture and commerce.

But the issue he takes is that it cannot be used locally. The money must be spent generally (i.e. nationally).

Could it not be argued that a national health care system is for the "General Welfare" in that it offers a basic need to Americans nationally? That without access to this basic need it could impede the productive capacity of the country as a whole?

Finally, he writes that "General Welfare" is a good term because it doesn't impose limits on its definition, which is good for a Union that faces "a vast variety of particulars." It's hard to say he could foresee America as it is today, so maybe it was a good thing he was in that mindset.

The_Dunedan · 10-29-2009, 12:25 PM

The bigger question is this:

Since the phrase "promote the general welfare" appears in the Preamble, and not in the Body of the document in question, does it carry any legal weight? Black's Law Dictionary says no:

Preamble. A clause at the beginning of a constitution or statute explanatory of the reasons for its enactment and the objects sought to be accomplished. Generally, a preamble is a declaration by the legislature of the reasons for the passage of the statue and is helpful in the interpretation of any ambiguities within the statute to which it is prefixed. Griffith v. New Mexico Public Service Comm., 86N.M 113, 520 P2d 269, 271 It has been held however to not be an essential part of act, and neither enlarges nor confers powers.

The underlined portion at the end is my emphasis. Read that again; nothing in a Preamble legally confers or enlarges powers. Meaning that, unless the power to "promote the general welfare" is to be found somewhere else in the Constitution other than in the Preamble, no such power exists.

Edited To Add:

I have reviewed the OP, and must now both look silly and rephrase my above objection. My objections in regard to the use of "promote the general welfare" in the Preamble to the Constitution still stand. However, I find I need to conduct a more detailed review and re-reading of Art.1 before proceeding. Mea Culpa.

Willravel · 10-29-2009, 12:37 PM

The healthcare issue, as it has been since day one, is federalism vs. anti-federalism. DK interprets the General Welfare clause through the lens of the anti-federalists and people like, say, me, view it more from a federalist perspective. Because that's an argument that's simply not going to be won, though, the issue has to simply be stripped of ideology down to the brass tax (no pun intended) of what's best for the country. We already have plenty of threads on the merits of something like single-payer, so I'll leave that conversation there.

Thinking of the General Welfare clause in a wider scope, though, requires one not just to read the scribbled notes of the founding fathers, but also the case law dealing with it. The judicial, after all, is responsible for rendering the official interpretation of a given law. FDR's new deal was given the stamp of approval from the Supreme Court, therefore those powers are not unconstitutional. Whether one agrees with those judges or not, for now it's legal. The Supreme Court adopted a more expansive view of the General Welfare clause than most anti-federalists are comfortable with. You can call it fascism or tyranny or Christmas, but it's not unconstitutional, at least not until there's another ruling on it.

Derwood · 10-29-2009, 12:40 PM

I think if Hamilton wanted what he says he wanted, then the Constitution should have been clearer and/or more specific about it. It's generally poor form for a country to write important, nation defining documents one way, and then say in other speeches/letters "well, what we MEANT was...."

And if the preamble has no legal binding, then neither do any of the letters and speeches of the Founding Fathers that concern the Constitution.

dksuddeth · 10-29-2009, 12:46 PM

Quote:

Originally Posted by Willravel

The healthcare issue, as it has been since day one, is federalism vs. anti-federalism. DK interprets the General Welfare clause through the lens of the anti-federalists and people like, say, me, view it more from a federalist perspective. Because that's an argument that's simply not going to be won, though, the issue has to simply be stripped of ideology down to the brass tax (no pun intended) of what's best for the country. We already have plenty of threads on the merits of something like single-payer, so I'll leave that conversation there.

Thinking of the General Welfare clause in a wider scope, though, requires one not just to read the scribbled notes of the founding fathers, but also the case law dealing with it. The judicial, after all, is responsible for rendering the official interpretation of a given law. FDR's new deal was given the stamp of approval from the Supreme Court, therefore those powers are not unconstitutional. Whether one agrees with those judges or not, for now it's legal. The Supreme Court adopted a more expansive view of the General Welfare clause than most anti-federalists are comfortable with. You can call it fascism or tyranny or Christmas, but it's not unconstitutional, at least not until there's another ruling on it.

so if the supreme court decided tomorrow that because todays threat of terrorism is so great, that searches of homes based on anonymous tips no longer need warrants because such a dangerous threat to life exists, that would be constitutional?

I think not, not anymore constitutional than if the supreme court said tomorrow that there is no individual right to own arms.

you should read up on 'the switch in time that saved nine' for a better look at WHY roosevelts policies all of a sudden came up hunky dory constitutional.

---------- Post added at 03:46 PM ---------- Previous post was at 03:44 PM ----------

Quote:

Originally Posted by Derwood

I think if Hamilton wanted what he says he wanted, then the Constitution should have been clearer and/or more specific about it. It's generally poor form for a country to write important, nation defining documents one way, and then say in other speeches/letters "well, what we MEANT was...."

And if the preamble has no legal binding, then neither do any of the letters and speeches of the Founding Fathers that concern the Constitution.

the problem you have with that is that those writings were made available to the people of the states so that they knew EXACTLY what they were voting to ratify. Those letters explained in clear terms what meant what. It's self defeating to ignore them now for interpretations by 9 black robed tyrants 200 years later.

Willravel · 10-29-2009, 12:57 PM

Quote:

Originally Posted by dksuddeth

so if the supreme court decided tomorrow that because todays threat of terrorism is so great, that searches of homes based on anonymous tips no longer need warrants because such a dangerous threat to life exists, that would be constitutional?

Yeah.

Don't confuse constitutional with right or what's best, because they're not synonymous. And you're not a judge. You're certainly welcome to your opinion, as am I, but I don't have the responsibility of judging for everyone what the constitution means. That's what we have the judicial for.

I'm a little curious as to how you interpreted BG's post.

dksuddeth · 10-29-2009, 01:10 PM

Quote:

Originally Posted by Willravel

Yeah.

Don't confuse constitutional with right or what's best, because they're not synonymous.

If we desired a country that had people to decide whats 'right' or best for us, we'd not have started the revolutionary war.

Quote:

Originally Posted by Willravel

And you're not a judge. You're certainly welcome to your opinion, as am I, but I don't have the responsibility of judging for everyone what the constitution means. That's what we have the judicial for.

We the people are the deciders will. Government is not supposed to have any power or authority to change the constitution at will or reinterpret clauses or amendments to suit needs of current times. It's why Art 5 was written.

Quote:

Originally Posted by Willravel

I'm a little curious as to how you interpreted BG's post.

I think he's trying to extrapolate too much out of it. he's taking hamiltons words of general funding and wanting to apply it to specific funding. probably because he thinks it's 'right' or whats best for us.

Willravel · 10-29-2009, 03:29 PM

Quote:

Originally Posted by dksuddeth

If we desired a country that had people to decide whats 'right' or best for us, we'd not have started the revolutionary war.

That's false equivalence and you know it. The Supreme Court is acting within its purview when it interprets the Constitution. Disagreement with DK does not a tyrant make.

Quote:

Originally Posted by dksuddeth

We the people are the deciders will. Government is not supposed to have any power or authority to change the constitution at will or reinterpret clauses or amendments to suit needs of current times. It's why Art 5 was written.

Actually the responsibility of the Supreme Court according to the Constitution itself in section 2 of Article 3 is to make determinations as to the interpretation of the Constitution. No one is "changing the Constitution at will", though. The Supreme Court didn't add the General Welfare clause.

Quote:

Originally Posted by dksuddeth

I think he's trying to extrapolate too much out of it. he's taking hamiltons words of general funding and wanting to apply it to specific funding. probably because he thinks it's 'right' or whats best for us.

Can you explain the difference, in your mind, between general and specific funding? Can you give examples of each?

dksuddeth · 10-29-2009, 03:42 PM

Quote:

Originally Posted by Willravel

That's false equivalence and you know it. The Supreme Court is acting within its purview when it interprets the Constitution. Disagreement with DK does not a tyrant make.

yes, it does. when the constitution was ratified, every single able bodied male KNEW that their right to arms couldn't be touched. Now, we have 'no right is absolute', reasonable regulation, and 'machine guns are too dangerous for civilians to own and that's why we have laws against them'. ALL of these are due to interpretations of later supreme courts in deciding whats 'best' for us.

Quote:

Originally Posted by Willravel

Actually the responsibility of the Supreme Court according to the Constitution itself in section 2 of Article 3 is to make determinations as to the interpretation of the Constitution. No one is "changing the Constitution at will", though. The Supreme Court didn't add the General Welfare clause.

this is not quite correct. their responsibility is to decide many different types of cases according to the constitutional text. Interpretation only came about from madison v. marbury.

Quote:

Originally Posted by Willravel

Can you explain the difference, in your mind, between general and specific funding? Can you give examples of each?

hamilton and jefferson defined it quite well. i'll go with their definitions.

Willravel · 10-29-2009, 04:15 PM

Wait, you're responding to "Disagreement with DK does not a tyrant make." with

Quote:

Originally Posted by dksuddeth

yes, it does.

?! How about a little tiny bit of objectivity here!

Quote:

Originally Posted by dksuddeth

when the constitution was ratified, every single able bodied male KNEW that their right to arms couldn't be touched.

You're pulling things out of thin air.

Quote:

Originally Posted by dksuddeth

this is not quite correct. their responsibility is to decide many different types of cases according to the constitutional text. Interpretation only came about from madison v. marbury.

The constitutional text includes the words "general" and "welfare" right next to each other, preceded by "promote the". The government is responsible for the promotion of the well-being of its citizens.

Quote:

Originally Posted by dksuddeth

hamilton and jefferson defined it quite well. i'll go with their definitions.

I'm asking your definitions. I can't agree or disagree with you, let alone delve into your thought process without knowing what you're talking about and this is an important part of the discussion.

Baraka_Guru · 10-29-2009, 06:39 PM

Quote:

Originally Posted by dksuddeth

he's taking hamiltons words of general funding and wanting to apply it to specific funding. probably because he thinks it's 'right' or whats best for us.

How is funding agriculture or education any more or less general than funding health care?

FuglyStick · 10-29-2009, 06:53 PM

LOL.

Applying religious fundamentalist logic to the constitution.

dc_dux · 10-29-2009, 07:44 PM

Wake me when Jefferson, Madison and Hamilton post what the thinking was during all the backroom discussions that took place during that summer in Philadelphia.

Until then, I'll leave it to the judiciary (even if I dont always agree)..as they wisely and clearly stated in Article III.

samcol · 10-30-2009, 04:34 AM

I have a couple major problems with the way the general welfare clause is used:

1. It's appears in a preamble.

2. The way big government lovers like to apply the term goes against the grain of the intent of the entire document (LIMITED not UNLIMITED government).

3. Why on earth would the founders go on to specifically state all the other powers that the federal government had if all these items could of been simply lumped into general welfare clause. The way big government types use the term basically makes much of the rest of the text in the constitution redundant or irrelevant.

4. Lets not forget the crap FDR pulled in order to get his interpretation of the clause.

Baraka_Guru · 10-30-2009, 04:53 AM

samcol, it's already been discussed that the clause appears not just in the Preamble, but also in Article I, Section 8.

Also, no one is saying that the clause is to be interpreted as a blank cheque.

samcol · 10-30-2009, 05:13 AM

Quote:

Originally Posted by Baraka_Guru

samcol, it's already been discussed that the clause appears not just in the Preamble, but also in Article I, Section 8.

Also, no one is saying that the clause is to be interpreted as a blank cheque.

I understand but much of that sentence still appears to be a preamble or summary for that section. Doesn't the general welfare clause make the rest of the powers redundant though?

I'll use to provide 'common defense' as an example because it seems to be used in a similar matter, however they go on and specifically describe: to raise and maintain and army and navy, organizing and disciplining the militia etc.

Similarly if you take 'general welfare' they go on to describe it in specifics with things like coining money, regulate commerce, borrow money etc.

In both cases if you use these two terms in a broad sense it makes the rest of the section rather pointless.

Derwood · 10-30-2009, 05:42 AM

Since it specifically says they can form and maintain an army and navy, does that make the Air Force, Marines and Coast Guard unconstitutional?

samcol · 10-30-2009, 06:01 AM

Quote:

Originally Posted by Derwood

Since it specifically says they can form and maintain an army and navy, does that make the Air Force, Marines and Coast Guard unconstitutional?

Good point, but I don't think it's a stretch to include Marines and Cost Guard under the Navy clause.

Also, the Air Force did begin as a branch underneath the Army. Technically I guess you're right though but I really don't think it's an issue worth pursuing.

Derwood · 10-30-2009, 06:22 AM

Quote:

Originally Posted by samcol

Good point, but I don't think it's a stretch to include Marines and Cost Guard under the Navy clause.

Also, the Air Force did begin as a branch underneath the Army. Technically I guess you're right though but I really don't think it's an issue worth pursuing.

I only bring it up as an example of the absurd lengths one can go to as a originist/constructionist.

Cimarron29414 · 10-30-2009, 06:45 AM

Can someone please show me the Article/Section which authorizes the Congress to force a citizen to purchase something?

SecretMethod70 · 10-30-2009, 06:54 AM

Not an issue worth pursuing? The Air Force has a budget of $160 billion - if it's unconstitutional, we should save that money! Or do you mean it's not an issue worth pursuing because you agree with it? You're either going to be a strict constructionist or you're not.

The_Dunedan · 10-30-2009, 07:00 AM

Quote:

Since it specifically says they can form and maintain an army and navy, does that make the Air Force, Marines and Coast Guard unconstitutional?

Army: Yes. The ability to maintain a standing, professional Army was intentionally left out of the Constitution because the framers realized the danger such armies posed to individual and collective freedom. Large formations of infantry or other land-based soldiery were to be provided by the various Militias, with overall command going to their State Governors in time of peace, and to the President in time of declared war. Notice please how much more difficult it would be to start wars in other people's countries under such a system. Congress has the power to raise armies (nationalise the Militia) and support them during time of declared war, but the Constitution only authorises such support for a term of 2yrs. After the crisis was past, the naive hope of the Framers was that Congress would simply de-fund the thing, send the Militiamen home, and get back to business. Obviously this hope was misguided. I'd have preferred an outright prohibition on standing professional armies, personally.

Marines: No. The Marines are part of the Navy.

Coast Guard: Yes. The functions currently fulfilled by the CG are those originally intended for the peacetime Navy.

Air Force: Yes.

SecretMethod70 · 10-30-2009, 07:01 AM

Quote:

Originally Posted by Cimarron29414

Can someone please show me the Article/Section which authorizes the Congress to force a citizen to purchase something?

Ah, now that's a health care reform issue that I think is worth debating. It's one thing to tax everyone for government health care, just as we tax for public education and so forth, but I do agree that mandating the purchase of health insurance from private insurance companies is unacceptable.

samcol · 10-30-2009, 07:04 AM

Quote:

Originally Posted by SecretMethod70

Not an issue worth pursuing? The Air Force has a budget of $160 billion - if it's unconstitutional, we should save that money! Or do you mean it's not an issue worth pursuing because you agree with it? You're either going to be a strict constructionist or you're not.

I don't think it's an issue worth pursuing because it did stem from the army and essential functions as an army that can fly. It's such a non issue because without a doubt the founders would of included it had aviation been invented at the time. I consider it a red herring.

However, the issue of the general welfare clause is definitely worth discussing because of some of the glaring problems that some of us have been pointing out.

Willravel · 10-30-2009, 07:14 AM

Quote:

Originally Posted by Cimarron29414

Can someone please show me the Article/Section which authorizes the Congress to force a citizen to purchase something?

Characterizing taxes paying for a government program as a purchase is dishonest. I don't purchase the military or Social Security.

The_Dunedan · 10-30-2009, 07:18 AM

Quote:

Characterizing taxes paying for a government program as a purchase is dishonest.

I'm inclined to agree, since the element of coercion makes it an involuntary transaction and therefore not, strictly speaking, a purchase. However, one of my favorite authors described Gov't thus: "The compulsory sale, for inflated prices, of unwanted services." I can think of few more fitting discriptions.

However, I think Cimmaron was referring to the requirements, in various versions of the Obamacare bills, which force people to purchase health insurance.

Derwood · 10-30-2009, 07:21 AM

Quote:

Originally Posted by samcol

I don't think it's an issue worth pursuing because it did stem from the army and essential functions as an army that can fly. It's such a non issue because without a doubt the founders would of included it had aviation been invented at the time. I consider it a red herring.

How about the FBI? The CIA?

SecretMethod70 · 10-30-2009, 07:48 AM

Quote:

Originally Posted by Willravel

Characterizing taxes paying for a government program as a purchase is dishonest. I don't purchase the military or Social Security.

That's not what Cimarron is talking about. He (or she?) is talking about the idea of government mandating that people purchase health insurance. I'd agree with you if we were talking about a single payer system where we're all just taxed for a national health insurance plan, but that's not what is being proposed. What is being proposed is that the government would require citizens to have health insurance, and possibly not even provide a government option with that requirement, thereby mandating that all citizens purchase something from a private company in order to obey the law. I'm a supporter of broad health care reform, but that is simply unacceptable, and thankfully if it passes it will likely be overturned in court. Even adding a public option into the mix, I'm not exactly sure how I feel about that. Seeing as how not all people will be getting the public option - certainly if states are able to opt out - the effect is still the same of government mandating that citizens purchase something from a private entity in order to achieve lawful residence.

Cimarron29414 · 10-30-2009, 07:50 AM

Quote:

Originally Posted by Willravel

Characterizing taxes paying for a government program as a purchase is dishonest. I don't purchase the military or Social Security.

...except that is not what I am talking about. There is a provision in the bill which mandates the purchase of health insurance. If an individual does not adhere to this mandate, they will be fined by the IRS an amount not to exceed $750 per individual and not to exceed $3800( I think) per household.

So, where in the Constitution is Congress granted the authority to mandate the citizenry to purchase something? For the sake of argument, imagine if this bill said, "Each adult must purchase and keep a pony. A person refusing to purchase and keep a pony will face a fine of $750/year."

rahl · 10-30-2009, 07:56 AM

Quote:

Originally Posted by SecretMethod70

Ah, now that's a health care reform issue that I think is worth debating. It's one thing to tax everyone for government health care, just as we tax for public education and so forth, but I do agree that mandating the purchase of health insurance from private insurance companies is unacceptable.

I disagree. You are already required to have auto insurance. Requiring people to be responsible for their own health should be mandatory, and will be.

Cimarron29414 · 10-30-2009, 08:20 AM

Quote:

Originally Posted by rahl

I disagree. You are already required to have auto insurance. Requiring people to be responsible for their own health should be mandatory, and will be.

Auto insurance is state mandated, not federally mandated. They aren't mandating responsibility for your own health. If they were, they would be eliminating the tax-payer funded subsidies (public health insurance) - hence, you would truly be responsible for your own health. They are doing the exact opposite.

Willravel · 10-30-2009, 08:28 AM

Oh he's talking about the thing that's just like car insurance, but that no one seemed to have a problem with until it because it was state-mandated instead of federally mandated, (which are in practice identical). My mistake.

roachboy · 10-30-2009, 08:38 AM

at what point did the federalist papers get elevated to the status of law or a guide to interpreting it?
when were the federalist papers ratified as part of the constitution exactly?
if the federalist papers aren't part of the constitution, and if the constitutional order begins with it's ratification, so begins with the document ratified and not the preliminary debates, what difference does it make what alexander hamilton thought about the general welfare clause and its position? i mean, beyond it being of historical interest, the kind of thing you'd maybe write about were you a legal historian or constitutional historian or working on the late 18th century political culture under the articles of confederation...

Cimarron29414 · 10-30-2009, 08:41 AM

Quote:

Originally Posted by Willravel

Oh he's talking about the thing that's just like car insurance, but that no one seemed to have a problem with until it because it was state-mandated instead of federally mandated, (which are in practice identical). My mistake.

huh? My sarcasm translator is on the fritz.

Spiritsoar · 10-30-2009, 08:46 AM

Quote:

Originally Posted by rahl

I disagree. You are already required to have auto insurance. Requiring people to be responsible for their own health should be mandatory, and will be.

You're not required to have auto insurance. You are required to have auto insurance if you wish to legally own and operate a vehicle, but you're not required to own a vehicle by law either.

Cimarron29414 · 10-30-2009, 08:56 AM

Quote:

Originally Posted by roachboy

at what point did the federalist papers get elevated to the status of law or a guide to interpreting it?
when were the federalist papers ratified as part of the constitution exactly?
if the federalist papers aren't part of the constitution, and if the constitutional order begins with it's ratification, so begins with the document ratified and not the preliminary debates, what difference does it make what alexander hamilton thought about the general welfare clause and its position? i mean, beyond it being of historical interest, the kind of thing you'd maybe write about were you a legal historian or constitutional historian or working on the late 18th century political culture under the articles of confederation...

I actually agree with you entirely. While they do serve as a guide to better understanding why the Constitution was written the way that it was, they do not serve as law themselves. There are many conversations here which question the reaction the framers would have to our current government and the Federalist Papers offer insight into what that reaction would be.

Martian · 10-30-2009, 09:08 AM

Quote:

Originally Posted by Spiritsoar

You're not required to have auto insurance. You are required to have auto insurance if you wish to legally own and operate a vehicle, but you're not required to own a vehicle by law either.

Also not entirely correct, unless things are radically different in the US.

You must have insurance to operate a vehicle on public roads. Doing so on private property carries no such requirement.

And I'm still not sure I understand how this relates to health care in any meaningful way.

Spiritsoar · 10-30-2009, 09:12 AM

Quote:

Originally Posted by Martian

Also not entirely correct, unless things are radically different in the US.

You must have insurance to operate a vehicle on public roads. Doing so on private property carries no such requirement.

And I'm still not sure I understand how this relates to health care in any meaningful way.

You're correct. But the point is that no one is required absolutely to have auto insurance.

It relates to health care because some of the proposed 'health care reform' plans would require all people to purchase health insurance.

If I'm not mistaken, this is already the case in at least one state (Massachusetts), but I don't live there, so I don't know the particulars.

Cimarron29414 · 10-30-2009, 09:21 AM

Again, the question is: Where in the Constitution is Congress authorized to REQUIRE an individual to purchase something.

Fuck it, I'll answer it myself. It is absolutely not there. Thus, any bill which contains such wording is unconstitutional. Those writing this bill KNOW that this provision is unconstitutional, and they are writing it anyway. Those same people swore an oath to uphold the constitution. Take that for what it's worth - nothing.

10-29-2009, 12:25 PM	#3 (permalink)
The_Dunedan Junkie	The bigger question is this: Since the phrase "promote the general welfare" appears in the Preamble, and not in the Body of the document in question, does it carry any legal weight? Black's Law Dictionary says no: Preamble. A clause at the beginning of a constitution or statute explanatory of the reasons for its enactment and the objects sought to be accomplished. Generally, a preamble is a declaration by the legislature of the reasons for the passage of the statue and is helpful in the interpretation of any ambiguities within the statute to which it is prefixed. Griffith v. New Mexico Public Service Comm., 86N.M 113, 520 P2d 269, 271 It has been held however to not be an essential part of act, and neither enlarges nor confers powers. The underlined portion at the end is my emphasis. Read that again; nothing in a Preamble legally confers or enlarges powers. Meaning that, unless the power to "promote the general welfare" is to be found somewhere else in the Constitution other than in the Preamble, no such power exists. Edited To Add: I have reviewed the OP, and must now both look silly and rephrase my above objection. My objections in regard to the use of "promote the general welfare" in the Preamble to the Constitution still stand. However, I find I need to conduct a more detailed review and re-reading of Art.1 before proceeding. Mea Culpa. Last edited by The_Dunedan; 10-29-2009 at 12:36 PM..

10-29-2009, 06:53 PM	#13 (permalink)
FuglyStick WHEEEE! Whee! Whee! WHEEEE! Location: Southern Illinois	LOL. Applying religious fundamentalist logic to the constitution. __________________ AZIZ! LIGHT!

10-29-2009, 07:44 PM	#14 (permalink)
dc_dux Location: Washington DC	Wake me when Jefferson, Madison and Hamilton post what the thinking was during all the backroom discussions that took place during that summer in Philadelphia. Until then, I'll leave it to the judiciary (even if I dont always agree)..as they wisely and clearly stated in Article III. __________________ "The perfect is the enemy of the good." ~ Voltaire

10-30-2009, 04:34 AM	#15 (permalink)
samcol Junkie Location: Indiana	I have a couple major problems with the way the general welfare clause is used: 1. It's appears in a preamble. 2. The way big government lovers like to apply the term goes against the grain of the intent of the entire document (LIMITED not UNLIMITED government). 3. Why on earth would the founders go on to specifically state all the other powers that the federal government had if all these items could of been simply lumped into general welfare clause. The way big government types use the term basically makes much of the rest of the text in the constitution redundant or irrelevant. 4. Lets not forget the crap FDR pulled in order to get his interpretation of the clause. __________________ It's time for the president to hand over his nobel peace prize. Last edited by samcol; 10-30-2009 at 04:53 AM..

10-30-2009, 04:53 AM	#16 (permalink)
Baraka_Guru warrior bodhisattva Super Moderator Location: East-central Canada	samcol, it's already been discussed that the clause appears not just in the Preamble, but also in Article I, Section 8. Also, no one is saying that the clause is to be interpreted as a blank cheque. __________________ Knowing that death is certain and that the time of death is uncertain, what's the most important thing? —Bhikkhuni Pema Chödrön Humankind cannot bear very much reality. —From "Burnt Norton," Four Quartets (1936), T. S. Eliot

10-29-2009, 12:37 PM	#4 (permalink)
Willravel ... a sort of licensed troubleshooter.	The healthcare issue, as it has been since day one, is federalism vs. anti-federalism. DK interprets the General Welfare clause through the lens of the anti-federalists and people like, say, me, view it more from a federalist perspective. Because that's an argument that's simply not going to be won, though, the issue has to simply be stripped of ideology down to the brass tax (no pun intended) of what's best for the country. We already have plenty of threads on the merits of something like single-payer, so I'll leave that conversation there. Thinking of the General Welfare clause in a wider scope, though, requires one not just to read the scribbled notes of the founding fathers, but also the case law dealing with it. The judicial, after all, is responsible for rendering the official interpretation of a given law. FDR's new deal was given the stamp of approval from the Supreme Court, therefore those powers are not unconstitutional. Whether one agrees with those judges or not, for now it's legal. The Supreme Court adopted a more expansive view of the General Welfare clause than most anti-federalists are comfortable with. You can call it fascism or tyranny or Christmas, but it's not unconstitutional, at least not until there's another ruling on it.

10-29-2009, 12:40 PM	#5 (permalink)
Derwood Who You Crappin? Location: Everywhere and Nowhere	I think if Hamilton wanted what he says he wanted, then the Constitution should have been clearer and/or more specific about it. It's generally poor form for a country to write important, nation defining documents one way, and then say in other speeches/letters "well, what we MEANT was...." And if the preamble has no legal binding, then neither do any of the letters and speeches of the Founding Fathers that concern the Constitution.

10-30-2009, 05:42 AM	#18 (permalink)
Derwood Who You Crappin? Location: Everywhere and Nowhere	Since it specifically says they can form and maintain an army and navy, does that make the Air Force, Marines and Coast Guard unconstitutional?

10-30-2009, 06:45 AM	#21 (permalink)
Cimarron29414 Still Free Location: comfortably perched at the top of the bell curve!	Can someone please show me the Article/Section which authorizes the Congress to force a citizen to purchase something? __________________ Gives a man a halo, does mead. "Here lies The_Jazz: Killed by an ambitious, sparkly, pink butterfly."

10-30-2009, 06:54 AM	#22 (permalink)
SecretMethod70 Human Administrator Location: Chicago	Not an issue worth pursuing? The Air Force has a budget of $160 billion - if it's unconstitutional, we should save that money! Or do you mean it's not an issue worth pursuing because you agree with it? You're either going to be a strict constructionist or you're not. __________________ Le temps détruit tout "Musicians are the carriers and communicators of spirit in the most immediate sense." - Kurt Elling

10-30-2009, 08:28 AM	#33 (permalink)
Willravel ... a sort of licensed troubleshooter.	Oh he's talking about the thing that's just like car insurance, but that no one seemed to have a problem with until it because it was state-mandated instead of federally mandated, (which are in practice identical). My mistake.

10-30-2009, 08:38 AM	#34 (permalink)
roachboy Super Moderator Location: essex ma	at what point did the federalist papers get elevated to the status of law or a guide to interpreting it? when were the federalist papers ratified as part of the constitution exactly? if the federalist papers aren't part of the constitution, and if the constitutional order begins with it's ratification, so begins with the document ratified and not the preliminary debates, what difference does it make what alexander hamilton thought about the general welfare clause and its position? i mean, beyond it being of historical interest, the kind of thing you'd maybe write about were you a legal historian or constitutional historian or working on the late 18th century political culture under the articles of confederation... __________________ a gramophone its corrugated trumpet silver handle spinning dog. such faithfulness it hear it make you sick. -kamau brathwaite

10-30-2009, 09:21 AM	#40 (permalink)
Cimarron29414 Still Free Location: comfortably perched at the top of the bell curve!	Again, the question is: Where in the Constitution is Congress authorized to REQUIRE an individual to purchase something. Fuck it, I'll answer it myself. It is absolutely not there. Thus, any bill which contains such wording is unconstitutional. Those writing this bill KNOW that this provision is unconstitutional, and they are writing it anyway. Those same people swore an oath to uphold the constitution. Take that for what it's worth - nothing. __________________ Gives a man a halo, does mead. "Here lies The_Jazz: Killed by an ambitious, sparkly, pink butterfly."