Up front let me say, as I have before, that the current health care system is the pits, unsustainable, and that insurance companies are corrupt. That insurance coverage is intertwined with your specific employer, that it is so much more expensive for individuals, that people are denied coverage because of preexisting conditions, and that we pay for routine care through insurance claims (which is like paying for gas for your car through auto insurance claims), are all terrible, illogical aspects of what we currently have. It needs to be overhauled.

That said, a benevolent king could easily use his sweeping powers to fix the system and provide health care for all in the most efficient and timely manner. But the dangers of establishing a monarchy would far outweigh the advantage of the universal health care he could provide. That is why in overhauling health care we need to make sure that it happens in a way that is consistent with the constitution and correct principles of just government.

The Constitution enumerates limited realms over which the National government has power. There are explicit powers in the constitution, and then there are implied powers which are accepted because without them the national government wouldn’t be able to exercise the stated powers.

A law or action by the national government is constitutional if it is within these enumerated or implied powers. If it oversteps those powers, then the law should be invalidated by the supreme court.

The health care law mandates that all people in the nation purchase insurance whether they want it or not. Supporters often point to mandatory automobile insurance laws as a parallel example.

Automobile insurance is NOT required by national law. It is the individual states who require automobile insurance, and the requirements vary widely from state to state. That is a crucial distinction. If the national government tried to require auto insurance, that too would be unconstitutional. Additionally even at the state level they also do not require all citizens to buy auto insurance. It is only a requirement if you want to get a driver’s license. Driving is a privilege and not a right. Those who do not want to drive are not required to have insurance. If a state required all citizens to buy insurance, whether they drive a car or not, that could arguably be unconstitutional too.

The health care law, unlike the auto insurance laws, is a national law and it requires everyone to buy insurance whether they want it or not.

So with health care we have to ask where in the constitution the national government derives its power to regulate health care and to force citizens to buy health insurance even if they don’t want it?

Supporters point to the ‘General Welfare” clause of the constitution.

The “General Welfare” clause is part of the preamble of the constitution, not the enumerated powers. The preamble states the objectives that they intend to accomplish through the powers and structures that follow. It does not grant any powers itself. The objectives are:

To form a more perfect union
To establish justice
To insure domestic tranquility
To provide for the common defense
To promote the general welfare
To secure the blessings of liberty to ourselves and our posterity

Each of these objectives is balanced and circumscribed by the others. The objective to promote general welfare does not trump the objective of securing our liberty and that of our posterity. The specific verbs used are also important. One objective is to “provide” common defense. Another is to “secure” liberty. But it does not say “provide” or “secure” the general welfare. It says “promote” the general welfare.

After the preamble, the articles of the constitution establish a system that the authors believed would correctly balance and accomplish these objectives. Has it worked perfectly? No. But it provided a process by which the structure could be amended when it wasn’t working correctly. If the constitution is not working, it should be amended. Otherwise, the government must operate within its parameters.

So the health care bill cannot be reasonably justified by the General Welfare clause.

So how else might it be constitutional?

Originally the Bill of Rights only applied to the national and not the state governments, but the courts have used the due process clause of the 14th amendment to allow the national government to invalidate state laws in order to protect individual natural rights and penumbral rights implied by those natural rights. So if health care is a right, then the national government might be able to justify the health care bill through the 14th amendment. However, that health care is a “right” is highly debatable in general, and completely inconsistent with the understanding of rights employed by the founders. See Is Health Care A Right? . If it is a right then the constitution should have to be amended to include it since under the current formulation it is not. So it is highly unlikely that it is constitutional through the 14th amendment.

Finally, the constitution allows the national government to regulate interstate commerce. It already uses that power to prohibit the sale of Health Insurance across state lines, even though it allows other forms of insurance to be sold.

But it is quite a logical leap to get from regulating interstate commerce to mandating individual purchase of insurance, especially since by national statute health insurance purchases do not cross state lines. Plus, there is no historical precedent that would imply that regulating commerce can be interpreted to mean forcing commerce (since that would conflict with the objective of liberty).

So that is why the health care law is likely unconstitutional. The reason why it is scary is that if the law is upheld as constitutional through any of the above constitutional clauses, then our interpretation of the language of the constitution has become so broad that the national government can do anything it wants and call it constitutional. And if that is the case, then our constitution has no inherent meaning and can no longer be counted upon to constrain government to accomplish any of its stated objectives.

I hope that helps explain why we believe the health care law to be unconstitutional and why we fear it.

UPDATE 3/26/2010 Correction

The General Welfare clause I discuss above  is in the preamble.  This is the clause that most people are familiar with and so they assume that when people talk about the General Welfare clause, they are referring to the preamble.  Case law upholds the explanation I have given.  Jacobson vs Massachusetts (1905):

“Although that Preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments.”

It has been brought to my attention, however, that there are actually two references to general Welfare in the constitution.  The second is in the Taxing and Spending clause of Article I Section 8.  This is the general welfare clause that could be cited to justify national action.  It says:

“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; but all Duties, Imposts and Excises shall be uniform throughout the United States;”

The interpretation of this general welfare clause has been hotly debated since the very beginning of the republic.  Much of the most contentious political battles between the Federalists and the Democratic-Republicans revolved around how expansively this general welfare clause could be interpreted. The triumph of Thomas Jefferson in the election of 1800 represented a repudiation of the expansive interpretation of the Federalists.   This narrow interpretation was the norm until 1936 when the Supreme Court overturned it in the case of United States v. Butler and then in subsequent cases about the constitutionality of the New Deal laws of the Franklin Roosevelt administration.  However, even though United States v. Butler did overturn the traditional interpretation of this General Welfare clause, it also struck down the New Deal law that imposed a tax on processors of farm products and then used the revenue to be paid to farmers who would reduce their area and crops because it violated the 10th Amendment which reserved powers not enumerated to the States or the People.

Most of the expanding power of the national government since FDR’s New Deal have been justified under this new interpretive approach.  The new health care law could potentially be upheld under that same framework, but the fact that it actually forces consumers to purchase a product contrary to their own preference is unprecedented and would represent a new innovation in constitutional interpretation well beyond anything ever done by New Deal laws.

On the one had we have democracy which is the rule of the majority. The government derives its just powers from the people.  So a government has to be fundamentally democratic to wield any power justly.  A government that foists the desires of a minority over the majority would be an unjust oligarchy, and tyranny of the minority.

However, the founders were also very suspicious of pure democracy because more often than not it devolved into a tyranny of the majority, where the majority unjustly tramples the rights of the minority.

So while keeping the government fundamentally democratic, they structured the government with a series of checks and balances based on distributing democracy to competing scopes that would prevent the states with large populations from tyrannical rule over the states with small populations, while still allowing government action to be derived justly from the people.  They called this a Democratic Republic.

In the case of Prop 8 the majority has ruled to uphold traditional marriage norms through democratic vote.

Those who favor same-sex marriage lost at the ballot box and view this as an act of tyranny of the majority, so they have turned to the courts to try to overthrow it.

Those who favor traditional marriage view the court case as an act of oligarchy, a usurpation of the democracy from which the government derives its powers.

Now we come to the arguments made by the lawyers before the California Supreme Court.

The proponents of same-sex marriage appear to be making the tyranny of the majority argument– that their rights are trampled by the majority.  But they are fail to explain how the government can justly foist their view upon a majority who disagree.  Unless you have a norm for judging the justice or injustice of democratic action, how can you distinguish between just democracy and unjust democratic tyranny? It can’t simply be that any democratic action you disagree with is tyranny.  If arguments of the proponents of same-sex marriage were to win, then our government would soon lose its legitimacy because it’s powers could no longer be clearly derived from the people.

On the other hand, Ken Starr, representing the Proponents of traditional marriage, argues that rights are defined by the majority and the majority can revoke and bequeath all rights.  This is not an argument for just democracy but for democratic tyranny.  He argues that our rights are derived from the majority of the people.  If the argument by the proponents of traditional marriage were to win, our government would quickly devolve into an unjust tyranny where the rights of a minority could be revoked by the will of a strong majority.  Again, unless you have an external norm by which the justice of a democratic vote can be evaluated, you cannot assume that all democratic actions are just.  This would open the door to the revocation of rights from any unpopular minority by a motivated majority. (Which, while they may desire when it comes to same-sex marriage, they may no be so keen for when it comes to the redistribution of wealth.)

Heads we lose; tails we lose.  Either argument results in unjust government.

The correct argument for both sides lies in the recognition of the source from where both our rights, and the powers we delegate to government originate.  The founding document of our nation, the Declaration of Independence, explains it:

We are endowed by our Creator with certain inalienable rights.  Among them life, liberty, and the pursuit of happiness.  The justice of our government must be measured against the Laws of Nature and Nature’s God.

Laws and constitutional amendments may be enacted through proper means, and still be unjust when measured against the Natural Law.

My rights don’t come from the government and they don’t come from the democratic will of the people.  They come from God.  Unless there is a source, external to both government and man, to which we can turn to claim our rights in the face of tyranny and injustice, how can anyone justifiably fight  either?

Proponents of same-sex marriage declare that laws and amendments that allow only for traditional marriage are unjust.  But upon what grounds?  Rights? Can they rest on the Laws of Nature and Nature’s God or the rights with which we are endued by our Creator without undermining the very justness of their same-sex relationships?  Can they declare the actions of the voters of California an unjust abridgment of their rights while refusing to identify a consistent standard by which that injustice is measured? They need to give a clear standard by which we can all judge the justice of same-sex marriage and the justice of prohibiting simultaneously both polygamy and adult incest.

Even if they are justified in their complaint, are their methods justified?

If the only way to throw off the yolk of injustice is to overthrow the checks and balances of the Republic and remove government power from its just foundation on the will of the people, then isn’t it better to submit to and endure an unjust law until it can be changed through patient, proper, constitutional means than to expose us to the huge danger that such an overthrow would bring?

This was just the situation that the nation faced with the issue of slavery before the Civil War.  The fugitive slave laws were legal and judged constitutional.  But they were contrary to the Laws of Nature and Nature’s God, and so they were unjust laws.

Many abolitionists took the view that such unjust laws could and should be defied.  In their minds, any law that contradicted the Natural Law was not a real law.

By the same standard, modern conservatives decry abortion laws.  It may be legal, but the law is unjust as measured by the Natural Law.

Abraham Lincoln spoke about those Abolitionists and their defiance of unjust law in his famous speech to at the Young Men’s Lyceum:

When I so pressingly urge a strict observance of all the laws, let me not be understood as saying there are no bad laws, nor that grievances may not arise, for the redress of which, no legal provisions have been made.–I mean to say no such thing. But I do mean to say, that, although bad laws, if they exist, should be repealed as soon as possible, still while they continue in force, for the sake of example, they should be religiously observed….

There is no grievance that is a fit object of redress by mob law. In any case that arises, as for instance, the promulgation of abolitionism, one of two positions is necessarily true; that is, the thing is right within itself, and therefore deserves the protection of all law and all good citizens; or, it is wrong, and therefore proper to be prohibited by legal enactments; and in neither case, is the interposition of mob law, either necessary, justifiable, or excusable.

Either same-sex marriage is right within itself, and therefore deserves the protection of all law and all good citizens; or, it is wrong, and therefore proper to be prohibited by legal enactments.  The same can be said for Abortion.

That should be the argument being made.  Right in itself or wrong.

Laws contrary to right and wrong should be endured until they can be changed through normal, democratic-republican, constitutional means.

We should reject both the oligarchy of the same-sex marriage faction, and the rights come from the tyranny of the majority of the traditional marriage lawyers, and work to produce a just government, measured against the laws of Nature and Nature’s God and the self-evident rights with which every individual was endowed by the Creator.

My personal opinion is that while homosexuals do have a number of  just grievances that we should listen to and address in the most just way possible, the redefinition of marriage is wrong in itself and should be properly prohibited by law.

This is a unbelievably devastating blow to our constitutional government.

The Troubled Assets Relief Program was dishonestly sold to the American people as an investment program.  We were told that the plan was that the national government would buy subprime mortgage backed securities from failing finance institutions.  These mortgages were attached to real properties and so they had inherent value, even though the irrationality of the market was causing them to be treated as if they had no value at all.   Having bought them, the government would then hold onto them until the market became rational again, and then resell them at a profit.  The profit would then be used to pay down the national debt.  They argued that because the properties would be resold at a profit, it was not a bailout, but an investment that would rescue the financial industry and potentially help pay down the national debt.

The whole plan was suspect, but warning that a failure to pass the bill would result in economic armageddon, the bill was hurried through Congress.

But when the $700 billion TARP funds became available, the funds were not to used to buy subprime mortgages.  President Bush and the Department of the Treasury pulled a bait and switch and only 14 days after the bill passed, restructured the program to use the first $250 billion to buy equity stakes in banking instiutions.  So instead of buying the troubled mortgages, the government was now a part owner of the financial institutions, with the potential to profit if the banks became profitable again.

This month, when the auto industry came asking for a bailout of its own, Congress failed to pass an new bill to do so.  So what does President Bush do?  He authorizes, by executive decree, $17.4 billion of the TARP funds as a loan to the automobile industry.

Wait a minute!  Can he do that?

Um.  No. It’s illegal or unconstitutional.

If Congress fails to pass the bill, the President cannot simply go ahead and reinterpret “financial institution” to mean “automobile company” and essentially legislate by an emperor’s decree.  But that is exactly what just happened.

We live in truly dire times.  I pray that we are not yet ripe for destruction.  We must fervently pray to God Almighty that he will frustrate the designs of those who would ruin our nation and that he will raise up wise, honest men and inspire them with the means to save us from economic ruin while still preserving our Constitutional Republic.