|After a year of contentious debate, it became clear that the House intended to pass the health care bill by whatever means necessary, even if it required the use of a “deem and pass” procedure whereby Members would not vote directly on the bill. After a massive public outcry arose against that unconstitutional proposal (Article I, § 7, ¶ 2, and § 5, ¶ 3 direct that “the votes of both Houses shall be determined by yeas and nays” on a measure rather than just “deeming” it passed), Rep. Chris Van Hollen (MD), head of the Democrat Congressional Campaign Committee, urged Democrat House Members to remain quiet and avoid talking about the unconstitutional process in an attempt to lessen the political backlash. 1
That procedure ultimately was not used, but once the health care bill passed, voters demanded of congressional leaders the constitutional provision that authorized the federal takeover of health care. In answering that question, Rep. John Conyers (MI) replied: “Under several clauses – the Good and Welfare Clause and a couple others. All the scholars – the constitutional scholars that I know (I’m chairman of the Judiciary committee, as you know) – they all say that there’s nothing unconstitutional in this bill.” 2
Of course, there is no Good and Welfare Clause in the Constitution, but assuming that Conyers simply made an honest mistake, he likely was referring to the General Welfare Clause, which appears in two locations:
House Majority Leader Steny Hoyer (MD) agreed that “Congress has ‘broad authority’ to force Americans to purchase” health care “so long as it was trying to promote ‘the general welfare’.” 3
(Rep. James Clyburn – the No. 3 ranking Democrat in the House – did not invoke the General Welfare Clause but instead candidly admitted, “Most of what we do down here is not authorized by the Constitution.” 4 )
The attempt by congressional leaders to invoke the General Welfare Clause as a cover for an unconstitutional act is nothing new. In 1792 when New England was suffering a crisis in one of its most important economic industries (fishing), some Congressmen proposed that federal funds be used to subsidize that troubled industry. James Madison quickly asserted that such a proposal was unconstitutional, explaining:
Madison then warned about the consequences of allowing Congress to expand the narrow meaning of the “General Welfare Clause”:
According to Madison, if the original intent of the General Welfare Clause were ever expanded, then Congress would begin an unbridled intrusion into areas that were deliberately designed by the Constitution to be under the control of the state and local governments. Two specific aspects of the Constitution were intended to prohibit such federal encroachments: (1) the Enumerated Powers Doctrine, and (2) the Bill of Rights – specifically the Ninth and Tenth Amendments.
Concerning the first, the Constitution authorizes Congress to address only eighteen specifically enumerated (that is, individually listed) areas and responsibilities; this is called the Enumerated Powers Doctrine. As affirmed by Thomas Jefferson:
Many other Founders were equally outspoken about Congress’ limitations under the Enumerated Powers Doctrine. In fact, this doctrine was so well understood that in America’s first several decades, presidents had only four cabinet level departments: the Secretary of State, the Secretary of War, the Secretary of the Treasury, and the Attorney General (occasionally there was also a separate Secretary of the Navy, but many presidents often placed him under the Secretary of War). Today, however, there are almost four times as many cabinet level positions, including a Secretary of Agriculture, Labor, Commerce, Housing, Education, Transportation, Energy, and many others. 8 Each of those areas was also very important two centuries ago, but because the Constitution had placed these areas under the jurisdiction of state governments, there was no federal presence involved in them.
Concerning the second point (the Bill of Rights), the Founding Fathers – dedicated students of history, government, and human nature that they were – knew that the federal government would invariably try to step beyond its enumerated powers; they therefore added the Ninth and Tenth Amendments to the Constitution, directly stipulating that all areas not specifically listed in the Constitution were to remain under the jurisdiction of the states and local governments, which thus included areas such as education, criminal justice, energy, agriculture, and many others. As Thomas Jefferson affirmed:
James Madison agreed:
Jefferson further explained:
As Jefferson summarized it:
Significantly, health care issues often arose in early America – as when various dangerous fevers would periodically appear, ravaging American cities and killing scores of citizens. Concerning health care issues, the Founders specifically placed domestic health care into the hands of the state governments, leaving issues of international health care in the hands of the federal government. As Thomas Jefferson affirmed, the federal government was “to certify with exact truth, for every vessel sailing from a foreign port, the state of health respecting this fever which prevails at the place from which she sails,” but that “the state authorities [are] charged with the care of the public health.” 13 Under the Constitution, states were to handle domestic health care issues, and the federal government foreign ones.
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Rep. John Shadegg (AZ)
Not surprisingly, leaders of Congress have not allowed this bill to move forward, nevertheless, what a refreshing idea that Congress should provide constitutional authority for the actions it takes and the bills it passes!
Rep. Mike Conaway (TX)
However, Congressman Conaway believed that not just school students but also Members of Congress and their staff should also study the Constitution on that day, so he introduced a congressional resolution to that effect. When the Chairman of the Judiciary Committee heard the resolution, he told Mike, “That’s the stupidest idea I’ve ever heard!” – an attitude far too common among many in Congress.
Nonetheless, Mike (and many other Congressmen like him) continues to study the Constitution regularly. In fact, Mike always carries a pocket Constitution with him and each time he reads through it, he writes the date on the flyleaf of the booklet – a practice he began even before he became a Member of Congress.
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The only way that more Congressmen will begin to study the Constitution is if “We The People” study it first and then, through the power of our voice, calls, letters, and votes, insist that our elected officials also know and observe it.
To help Americans better understand the Constitution and the limited government set forth by the Founding Fathers, we have just released a new audio CD called “The Principles of Limited Government,” which can be purchased or downloaded. We also have a pocket Constitution, called “Documents of Freedom.” Both are available in a special Limited Government Package for 20% off and are also available in our online store at www.wallbuilders.com
1. “Van Hollen memo lays out time line and messaging,” Politico.com, March 12, 2010 (at: http://www.politico.com/livepulse/0310/Van_Hollen_memo_lays_out_time_line_and_messaging_.html). (Return)
2. Kerry Picket, “Conyers fabricates constitutional law citing ‘good and welfare’ clause,” Washington Times, March 23, 2010 (at: http://www.washingtontimes.com/weblogs/watercooler/2010/mar/23/conyers-makes-constitutional-law-citing-good-and-w/).(Return)
3. Matt Cover, “Hoyer Says Constitution’s General Welfare Clause Empowers Congress to Order Americans to Buy Health Insurance,” CNSNews.com, October 21, 2009 (at: http://cnsnews.com/news/article/55851). (Return)
4. David A. Patten, “Napolitano: Supreme Court to Strike Down Obamacare,” Friday, 26 Mar 2010, Newsmax.com (at: http://www.newsmax.com/Headline/Andrew-Napolitano-barack-obama/2010/03/26/id/354008). (Return)
5. Jonathan Elliott, The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Washington: 1936), Vol. 4, pp. 428, James Madison on “The Cod Fishery Bill,” February 7, 1792. (Return)
6. Jonathan Elliott, The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Washington: 1936), Vol. 4, pp. 429, James Madison on “The Cod Fishery Bill,” February 7, 1792. (Return)
7. Thomas Jefferson, The Writings of Thomas Jefferson, Andrew A. Lipscomb, editor (Washington, D. C.: The Thomas Jefferson Memorial Association, 1904), Vol. XV, p. 133, Thomas Jefferson to Albert Gallatin, June 16, 1817. (Return)
8. “The Cabinet,” WhiteHouse.gov (at: http://www.whitehouse.gov/administration/cabinet) (accessed March 30, 2010); “Cabinet Level Departments,” National Defense Industrial Association (at: http://www.ndia.org/Resources/LinkCentral/Pages/Cabinet_Level_Depts.aspx) (accessed March 30, 2010). (Return)
9. Thomas Jefferson, The Writings of Thomas Jefferson, Andrew A. Lipscomb, editor (Washington, D. C.: The Thomas Jefferson Memorial Association, 1903), Vol. III, p. 146, Jefferson’s opinion against the constitutionality of a National Bank, February 15, 1791. (Return)
10. Jonathan Elliott, The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Washington: 1936), Vol. 4, p. 429, James Madison on “The Cod Fishery Bill,” February 7, 1792. (Return)
11. Thomas Jefferson, The Writings of Thomas Jefferson, Andrew A. Lipscomb, editor (Washington, D. C.: The Thomas Jefferson Memorial Association, 1903), Vol. X, pp. 167-168, Thomas Jefferson to Gideon Granger, August 13, 1800. (Return)
12. Thomas Jefferson, The Writings of Thomas Jefferson, Andrew A. Lipscomb, editor (Washington, D. C.: The Thomas Jefferson Memorial Association, 1904), Vol. XV, pp. 450, Thomas Jefferson to Judge William Johnson, June 12, 1823. (Return)
13. Journal of the Senate of the United States of America, 1789-1873, Message by President Thomas Jefferson “To the Senate and House of Representatives of the United States of America,” on Tuesday, December 3, 1805 (at: http://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field%28DOCID+@lit%28sj0044%29%29); see also, Thomas Jefferson, “Fifth Annual Message,” The American Presidency Project, December 3, 1805 (at: http://www.presidency.ucsb.edu/ws/index.php?pid=29447). (Return)
14. “Text of H.R. 450: Enumerated Powers Act,” Govtrack.us, January 9, 2009 (at: http://www.govtrack.us/congress/billtext.xpd?bill=h111-450). (Return)
16. David Yalof and Ken Dautrich, survey conductors, “New Constitution Day Survey,” John S. and James L. Knight Foundation, September 20, 2007 (at: http://www.knightfoundation.org/news/press_room/knight_press_releases/detail.dot?id=139618#), (for the full survey, go to http://www.firstamendmentfuture.org ). (Return)
17. John Jay, The Correspondence and Public Papers of John Jay, Henry P. Johnston, editor (New York: G. P. Putnam’s Sons, 1890), Vol. I, pp. 163-164, from his Charge to the Grand Jury of Ulster County, September 9, 1777. (Return)
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Health Care and the Constitution, by David Barton