General welfare clause
 

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.

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

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

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 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.

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.

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.

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 ----------

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.

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.

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


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.

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.

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

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.

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.

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

Wait, you're responding to "Disagreement with DK does not a tyrant make." with
?! How about a little tiny bit of objectivity here!
You're pulling things out of thin air.
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.
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.

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

LOL.

Applying religious fundamentalist logic to the constitution. :rolleyes:

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.

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.

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.

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.

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

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

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.

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.

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 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.

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

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.

How about the FBI? The CIA?

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.

...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."

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.

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.

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...

huh? My sarcasm translator is on the fritz.

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.

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.

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.

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.

I don't think it's a radical concept to look towards the authors of a document when a phrase's meaning comes into question. Most liberals have a hard time doing this because it proves a huge federal government and much of their agenda was never intended. Therefore those thoughts have to be thrown out entirely and labeled irrelevant.

So instead of admitting this and try and work towards a more liberal or larger government through amendments and bills, they have to construe words like the 'general welfare clause' or the 2nd amendment to say things that they don't and never were intended in order to get the agenda through.

If general welfare was supposed to mean what it says today wouldn't the new deal legislation of flown right through the courts instead of FDR stacking them in order to get this change?

I think you may have misinterpreted my point. I see the connection, but I don't see how it's a valid or meaningful one (hence, "in any meaningful way").

Publicly mandating that everyone must be insured is not a terrible thing. Publicly mandating that everyone must have private insurance, though, is the wrong way to do that. With out a cost effective government option, preferably geared to income, it ends up being a feeble attempt at reform which only serves to increase the private insurance companies' profit margins.

I'm not completely up to speed, though, so I don't know precisely what form such a mandate is currently taking, or even if it's still a part of the currently proposed reform. Anyone care to provide a link?

Ah, so you want to protect the Constitution by preventing the president from appointing justices.

not what he meant and you know it. you have heard of FDRs court packing scheme before, right?

The switch in time that saved nine - Wikipedia, the free encyclopedia

http://en.wikipedia.org/wiki/Court_packing

samcol: first off, it is still somehow interesting to me the extent to which those fine fellows at the hoover institution have managed to define everything about contemporary conservative viewpoints, including those of more conservative libertarians. the battle is still the one that pit the old-line hooverites against the new deal. the arguments are still the same too. it's kinda funny to find ourselves in 2009 repeating the debates of the early 1930s.

anyway, the most basic point is, i would expect, obvious: the american constitutional tradition was set up to respond to changing times through the mechanism of precedent as well as through the mechanisms of amendments to the constitution itself. that's how it works. that's what has allowed the united states to avoid having a constitutional crisis for over 200 years--more rigidly written constitutions operating in contexts close to that dreamt about by strict constructionists have had repeated crises.

it doesn't really matter what people in the late 18th century foresaw in terms of the subsequent 200 years. unless you want to attribute some super-human status to the framers, which seems of a piece with the notion that Intent is some kind of transcendent category that can be appealed to in ways that function to juxtapose it to history with the result that history looses.
the framers probably didn't foresee capitalism: i dont see you arguing that therefore capitalism should be abolished.
the framers didn't foresee automobiles: does that mean there should be no laws around cars?
the framers didn't foresee industrial agriculture: does that mean all food safety regulations should be abolished?

One could argue that they didn't have to foresee those advancements and simply intended on the States handling those matters. States have automobile laws which differ from state to state, for example. Certainly commerce and agriculture laws, even to food safety have state laws.

Constitutionalist does not equal one who supports lawlessness or an anarchist. It simply means, let the states handle those laws. I will never understand why that is so scary to people.

And this thought is confirmed in 10th amendment. I never understand why we have to debate every issue on a national level where everyone has to put up with the results whether they want to or not. A more localized approach allows citizens to more easily effect change and doesn't force us to deal with a homogeneous nationwide approach.

roachboy, I do believe the ability to change the Constitution can be a good thing, but I think the pendulum has swung way to far in the wrong direction to a HUGE unmanageable government. Once we enact these types of legislation it becomes very difficult to change or abolish. I mean we've been putting up with some of the problems in the Social Security bill for DECADES. Things like robbing the trust fund as well as increasing lifespans. I see the same thing happening to healthcare with no quick or easy way to change it, in addition to believing it is unconstitutional at the federal level.

there's nothing particularly "scary" about it, cimmaron. the arguments advanced to get to that position, however, simply don't seem to me to hold up---or even to make sense. i can understand an aesthetic preference for states having more power because they're physically closer to you and so appear to be more responsive. i could even see a political case that one could make for it--but not a constitutional one.

don't get me wrong, either--i'm no fan of capitalism and certainly not of the existing american version of it, nor of it's pseudo-democracy in which the polity is politically free one day every two years, four years or six and spends the rest of the time being consumers and pretending that their ability to buy shit is the same as political freedom.

but arguing for states as over against federal administrative authority in itself seems little more to me than a shell game--you move the same problems level to level as if that resolves anything.
and like i said, the constitutional arguments for doing that seem to me silly.
not scary.
silly.

can you show where that is written in to the constitution? because all I've been able to find is the amendment process. In no other place in the constitution is there a 'changing times and circumstances' clause.

Fine I'll use an example on par with yours. You will be required to carry health insurance if you wish to obtain any medical advice or treatment, but your not required to have any medical treatment by law.

I have, but i've never heard of it called a "scheme" before. Was "caper" too dramatic? How about "FDR's Bench Rape Treason Stratagem"?

President Roosevelt got this crazy notion in his head that he'd end the Great Depression, so he started working to draft a massive package of economic programs in order to (and which eventually did) bring about American economic prosperity again. In response, he was called a fascist and a socialist (but it was too early for people to draw Hitler mustaches on his image... it wouldn't have made sense). The Judiciary Reorganization Bill of 1937 simply said that when a Justice turned 70, they'd age out. Do you know the life expectancy in 1937? It was about 60. FDR's opponents, who ended up being totally wrong about the New Deal, characterized it as a court-stacking scheme, but the 75th Congress never would have confirmed a bunch of pro-New Deal justices... so this accusation was bullshit.

The problem is that the propaganda seems a lot more prevalent today than the actual facts of the case (the wiki is a mess).

dk: so the entire american legal system as it extends past the limits of the piece of paper that is the constitution is, in your view, problematic?

i would imagine that the parts which are problematic are the parts you disagree with politically and the parts that aren't are those which you do not disagree with politically.

Wait, isn't this how it already is?

Well, not quite. When I was younger and uninsured, I did something stupid and broke my hand. The debt from x-rays and cast and visits and all was a decent amount. So I went to the medical office, set up an affordable payment plan, and eventually paid it off.

Laws that require hospitals to provide care in an emergency regardless of ability to pay are a good thing. So are the laws that require you to pay your debt for their services.

Then why is it required to have insurance to own and operate a motor vehicle. Why couldn't you just set up a payment plan with the person who's car you smashed?

It's the same principle. By requiring everyone to carry some form of health insurance, be it public option or private, the over all cost of health care services will go down since there won't be any non payments for procedure. Economically speaking it's foolproof

normally I would call out someone for thinking that i'm simply an ideologue and wish to pick and choose only parts of the constitution that I agree with, but in this case it wouldn't matter. you don't like conservatives nor libertarians and you especially dislike conservative libertarians. You probably wouldn't accept my premise that I don't pick and choose parts of the constitution that only I like, I pick and choose it all as it pertains to limited powers of the government. I know that's counter to your philosophy.

and yes, the entire american legal system, as well as political system is problematic precisely because it has not only exceeded the limits of the constitution, but practically ignores almost all of it.

That's assuming a public option exists. But people who can't afford the insurance for their vehicle have the option of not owning one. Under some proposals (without public option) you either pay or get fined. Where does this leave the people who can't afford either?

On a side note, I really don't know where I stand on this whole situation of health care reform or what's right. I just think the auto insurance comparison is silly.

you really need the answer to this?

the states require it's citizens to obtain auto insurance because if they don't (something that is still an option if enough people demand it) then the feds simply deny them federal highway funds.

this only happens by completely controlling the costs of all healthcare related items via the law. If you don't control costs, those mandatory insurance policy costs will increase to cover the health insurance companies overhead and profit margin.

for the record, dk, i dont dislike anyone personally. i find arguments more and less coherent: things people say make more or less sense to me, depending on the logic. in the case of your position on the constitution, were you arguing as a historian, i'd have nothing in particular to say about it: you'd be encountering the same questions as anyone who was interested in trying to understand the positions and contexts that shaped the writing of the constitution. sometimes really interesting work can happen using that approach--look at keith baker's thing on the process that resulted in the declaration of the rights of man during the french revolution for example. but these are historical/exegtical exercises. the problem with your position is that it sets up "intent" as a transcendent principle and juxtaposes that to history as it's played out, and so to the legal tradition in the united states as it has operated for 200 odd years, and try to make political/legal arguments based on that.

from a methodological viewpoint, you can't do that even in historical writing. you cannot reconstruct intent. you can't do it.
you cannot tell for example anything at all about my intent from these sentences. you can construct and interpretation of it--but another could juxtapose another and there'd be no appeal to the writer, only to the words and in the end the question of which interpretation "works" would be a function of how closely it stuck to the surface of the sentences and what the framework that was used to set the interpretive machinery into motion.

so the problem i have with your position really has nothing to do with my "dislike" of this or that political position--it has first and foremost to do with the fact that you are making naive use of the category of intent to set into motion a sequence of claims that can't be compelling, in my view, because their premise is faulty. that you derive political correlates from these faulty premises that i don't agree with on other grounds of course doesn't help matters. but don't take it personally. it's just a logic game. we're on a messageboard. no-one cares what we say. this isn't a political space really. it's a parlor game. it's not personal. it's just a game that amuses us to play.

you are correct. I should have stated that you don't like the philosophy and ideology, not referred to them as pronouns. My apologies for that. I didn't intend to state that you dislike conservative and libertarian people.

This should be on the front page of the forum right under the title.

I admit I haven't read the current bill, I would assume that if a public option doesn't exist then the gov't isn't going to force someone who can't possibly afford health insurance to buy it or be fined. But if one exists then you should have to have either the public option or private insurance in order to be treated medically.

Do you think any states will opt out?

Well, its good to see the constitutional scholars making their voices heard.

The government requires you to buy car insurance if you want to drive. I'm not a constitutional scholar either, but it appears that nobody of any consequence actually believes any of these crazy "it is not constitutional" arguments. Certainly none of the legit con law scholars. I'm pretty content with that.

Some red states might, at first. If the PU is a success, though, they'll eventually opt back in again.

If it's not a success, I'd like to opt into Canada. http://www.slapupsidethehead.com/wp-...adian_flag.png

It's been pointed out that auto insurance is an entirely different case. This issue, by the way, is significant on both sides of the debate. A few weeks ago I was at a meeting of the Progressive Democrats of America and they were expressing their hopeful belief that if a bill is passed with a mandate and without a public option, it will end up overturned in court. Even the people who support reform recognize that a mandate, especially without a public option, represents more money for the insurance companies and nothing else.

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Absolutely. Texas and South Carolina, for starters.

I think the opt out clause should require that if a state opts out, its legislators must also opt out of whatever government run plan they're on. I'm annoyed as fuck by my governor, who I'm fairly certain is on a government run health insurance plan, complain about how horrible government run plans are.

once again. the federal government CAN NOT REQUIRE YOU TO BUY AUTO INSURANCE!!!!!

they get around this by denying federal highway funds to the states if the states don't require it. Therefore, any FEDERAL lawsuit that has been brought up on it has failed because the USSC has ruled that denying funding to states is not unconstitutional. That also puts a hole in the general welfare clause if the feds can refuse to pay for the general welfare of certain states.

I don't understand the ideology where strict adherence to the constitution outweighs something that is undeniably good (e.g. The New Deal). All I ever hear is "The New Deal was unconstitutional!!111!!" attached to some absurd claim that a strictly constructionist approach to getting out of the Great Depression would have somehow been as (or more) successful.

New Deal undeniably good.... :orly:

why have a constitution then? just let the government do what they think is best for us, right?

We do have a Constitution and it includes the General Welfare clause, which has been decided (by a non-stacked SCOTUS) to include things like social programs. It's constitutional according to the court, therefore it's constitutional. Everything else is simply opinion. You're welcome to your opinion, but you're suggesting your opinion in fact when it's not.

The opinions that matter when it comes to the law are the opinions of a majority of the Supreme Court when the judgment came. Maybe in the future a bench will decide otherwise, but for the time being that's the way it is, and it very likely extends to things like federal health care.

It'd be nice if it were 1945 and we were trying single-payer on a state-by-state basis, but 45,000 Americans a year are dying because of an inept/corrupt private insurance system. How you can argue that the government is protecting the general welfare by not providing a service that would save fifteen times the amount of lives lost on 9/11 is beyond me.

putting Americans to work building infrastructure was bad?

I'm betting that you wouldn't have such an expansive view of the general welfare clause if the courts called taxes to pay for blackwater/Xe to provide urban security against leftwing protesters as constitutional.

You know, that is all and well, until you consider that those constitution-defying decisions were influenced under threat of 'packing' the court with Justices who WILL ratify the legislation.

So it goes something like this:
1.) During the depression era, Congress passes a bunch of new bills.
2.) Many of the bills are struck down as unconstitutional.
3.) FDR and congress are pissed, so they come up with the idea of putting as many as 15 justices on the Bench--thereby effectively overruling the Supreme Court.
4.) Supreme Court finally relents and allows the new bills to stand.

It is right to say, "Yes, the SCOTUS decides and that's how it is." But it's also worth noting that sometimes, the SCOTUS is not above politics in deciding what is best for the nation.

I'm all for universal healthcare. But proceed cautiously!

You're not reading what I'm writing. I'd be of the opinion that such funding is a terrible idea, but if the SCOTUS declared it constitutional, it would be constitutional. That's how this works.
Only that's not how it happened. Congress never ever would have passed such legislation and everyone, including the old men on the bench, knew it. Congressional conservatives and liberals weren't quiet about it either.
I once made the argument that many SCOTUS decisions were politically motivated, and that some of the justices were clearly biased. You should ask Cynth, Jazz, and Loq if the Supreme Court has political biases.

You're right, the Supreme Court can and does sometimes use political beliefs and the atmosphere to factor into decisions, regardless of what SCOTUS apologists might say. Still, despite the fact that we may not agree with their decisions, those decisions are the law. I can't suggest overturning political decisions I disagree with without suggesting overturning everything from Roe v. Wade to Brown v. Board of Education to Lawrence v. Texas.

I don't agree with everything the legislative or executive does either, but I know when laws are voted through the house and senate and get the president's signature, they're law.

The individual mandate will almost surely be ruled constitutional.

Link 1.

Link 2

for someone to actually and intellectually honestly believe that congress has the constitutional authority to mandate a private citizen buy health insurance would also have to believe that the commerce clause of the US constitution also gives congress the constitutional power to mandate you buy roses or petunias to plant in your front yard and if they can realistically square that up with the limited power that the founders wanted in a federal government, well then they just either do not understand founding history or they don't care. I'd rather prefer they just admit that they don't care.

I agree with dk on this one. It is hard to accept that the commerce clause can be used to force individuals to buy a product in order to increase the volume to keep the price down. Something is very wrong with this concept.

There's a vokda that came out this year called New Deal. Really.

Apparently, it's not a good idea to use New Deal when you're already feeling sad, as it will just prolong the depression. On the upside, spending money on a bottle of vodka that you wouldn't otherwise have bought must surely stimulate the economy in some sustainable way. How bad could the side effects possibly be?

I have no idea what you're talking about, and now I'm drunk

Article above from here. It's worth a read, I hope people check it out. 538 has been really at the top of its game recently.

i read it earlier. it's a decent article, but obviously from someone with a 'living document' ideology. it doesn't work.

Refute his points

Considering point three, I think it's pretty hard to argue against some sort of living document approach.

The founders experienced an overbearing government. The ever changing policies enacted by a tyrant king, followed up by an unrelenting non-caring attitude over them airing their grievances, led the founders to independence. Having just experienced that and fighting against it to create their own independence, it seems highly unlikely that they would have written the constitutional powers to allow the newly formed congress to do whatever they wanted to in the name of interstate commerce, general welfare, or necessary and proper.

If somewhere in there is a secret piece of paper that says 'ha, fooled you all', i'd like to see it.

I didn't see "whatever they wanted" when I read that article.

There is a lot of gray area between "legislature doing whatever they want" and "everything needed to govern the country is in the original Constitution"

There is no worse tyranny than to force a man to pay for what he does not want merely because you think it would be good for him. — ROBERT HEINLEIN

thought this was interesting, given the climate.

Part of living in civilized society is contributing to the greater good.

"You can't always get what you want" - Rolling Stones (Since we're quoting irrelevant artists)

FWIW, I don't think fining people for being uninsured is a great idea

---------- Post added at 01:21 PM ---------- Previous post was at 01:21 PM ----------

and I'm still waiting to hear why single payer health care is unconstitutional but the FAA isn't

Agreed on both points Derwood.

I didn't know Heinlein was so out of touch when it came to tyranny.

Heinlein said this after serving in the Navy, using military medical treatment for his TB, and attending UCLA, making him either a tyrant or a hypocrite.

/science fiction nerd

Did Heinlein say this or did one of his characters?

The power of Congress is limited by the right of the people to vote them out of office and replace them with representatives who have the full authority to nullify any previous act of Congress. Their power is also significantly constrained by the presidential veto.

Perhaps you feel that these checks on congressional power are not potent enough. So be it. The founders could easily have invented other checks if they had so intended but they did not. If you're unsatisfied with your representatives then get active in the election process. This is your right. What greater power could the people hope to wield?