We live in a period of American history where The Constitution of the United States is an inconvenience. The document is fundamentally ignored as the governing authority for the behavior of the Federal government, State governments and even the legal system. It seems that it is only those who have been violating The Constitution in deeds and spirit who find themselves on the losing side of a discussion that The Constitution all of a sudden becomes relevant again. Even then it is not always properly applied to the issue. The Constitution is not a menu system where we can pick and choose what we want when it is convenient. The Constitution is a spouse. We are married to it. We get all the benefits and all the limitations imposed by that relationship. All the time.

As an example, the legal system has manage to replace the written words of the Constitution of the United States with legal precedence in relation to the 1st Amendment. The Supreme Court has established a doctrine called “The Separation of Church and State”. The implementation of this doctrine violates the very freedom of expression to religious expression that the 1st Amendment guarantees. A church gets classified as a charity meaning it gets tax incentives. They publicly display the nativity or the ten commandments. Someone gets offended and sues to have it taken down because the institution is receiving federal funds. The court system rules that the religious expression violates the legal precedence of the separation of church and state. However, what has really happened is that the civil liberties of every member of that religious community has been violated. Lets review what the 1st Amendment as written says.

            Congress shall make no law respecting an establishment of religion, or        prohibiting the free exercise thereof; or abridging the freedom of speech, or of the            press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

How does abridging freedom of speech, religious or otherwise as a result of a legal precedence make any sense? The real question is should religious institutions have access to public largesse? Does granting tax benefits to Buddhist, Christian, Hindu, Jewish, or Muslim institutions violate the beginning phrase of the 1st Amendment?

Clause 4 is designed to correct another wrong which most people overlook. The Standing rules (locus standi) grant the Federal and State governments to much flexibility in their use of authority. The ideal is to reinforce civil liberties of the Citizens of the United States by limiting the courts ability to reject plaintiffs base on “imminently” of harm

Congress continues, regardless of party to pass laws outside its constitutional authority. The healthcare debate is a perfect example. Where in The Constitution does it grant the federal government the power to manage, provide, and appropriate funds for an individuals healthcare? It is definitely not found under the commerce clause. None of the services ever cross state lines. Where does it grant power to tell a U.S. citizen to buy a product? Many consider healthcare a right. However, this “Right” is not written anywhere. It is not in the Bill of Rights or any current amendment to the Constitution. Additionally, how can it be a right if it requires some else to provide you the service? Some say it is part of the social contract. Where is this mythical document? The fact is, The Constitution is written as the social contract for the United States. Regardless of all this, the current President and crop of Congressmen are talking about exercising an authority they do not have. This use of power is part of an ever continuing violation of the 10th Amendment to The Constitution of the United States which states the following.

            The powers not delegated to the United States by the Constitution, nor prohibited   by it to the States, are reserved to the States respectively, or to the people.

The Constitution offers really only two things. Justice and Liberty. It does not offer services. Justice in that every citizen shall be treated equally under the law and liberty, the right of every citizen to determine their own destiny. Every legislature in the United States should consider with each proposed law whether they are violating the liberty of their citizens and Congress in addition should consider with each proposed law whether they are also violating the 10th Amendment. The Right of the States.

Because of the Founding Fathers distrusted governments as a whole they federalized (distributed) the authority between what are supposed to be independent branches (Legislature, Execute, and Judicial) as well as the sovereign states versus the federal. The idea was to create a constant push an pull on authority to keep power in limited ranges for every institution, thus insuring liberty in the balancing of these interests. However, we find ourselves in period where the political parties dominate the institutional design of the founding fathers. Elected representatives are more beholden to their political party and the funding associated than they are to their institutions or the people they represent.

The proposed amendment is one step to reigning in the overuse of unconstitutional authority being practiced today and attempt to narrow the authority of the federal government to be more inline with the original intent of the founding fathers

The Amendment: 

1. Congress shall pass no law or appropriate funds without properly identifying and specifying the Constitutional authority of the Federal government to invoke such a law or establish the use of public largesse. Each law shall incorporate a statement of intent for that law which will govern the application of that law and will specify the clause in The Constitution which provides for that authority
2. Congress is prohibited from passing any law which literally violates The Bill of Rights or any civil liberty which has been amended to The Constitution of the United States.
3. The judiciary shall have authority when invoked to review, suspend for a period, and vacate any law violating the Constitution of the United States. The judiciary shall only consider the Constitution of the United States, The Bill of Rights or any enumerated civil liberty amended to The Constitution of the Unites States in its deliberations and decisions.
4. The executive branch of the federal government, the states, and any United States citizen shall have legal standing to challenge any statute extending Federal authority beyond what is specified in The Constitution of the United States and violates The Bill of Rights or any amended civil liberties.

The authority of governance for the modern republics of the world comes directly from the consent of the governed. This is very much true for The United States and this thinking informed The Founding Fathers when they created this country. Coupled with the idea that all authority is derived from the consent of the governed is also the concept that people and government would establish a social contract. This also influenced  the early framers of The United States. The social contract is often bandied about by those attempting to empower more authority in a centralized government in the name of more services to the people. However, the truth is that our social contract is The United States Constitution. Any other attempt to create some mythical unwritten social contract outside the one we have is a lie to the citizens hearing it. The Constitution defines governments scope of power and with the bill of rights and supporting amendments limits to it as well. The Constitution also clearly defines the rights of its citizens. These are not menu options but guaranteed to every citizen.

What does The Constitution say about the federal governments authority over healthcare? Is it a federal responsibility? Does it fall within the scope of our social contract?

Some think that the Preamble to The Constitution grants authority within the “General Welfare” reference. The first problem with this perspective is that The Preamble to The Constitution does not grant powers or authority. The Preamble is the summary statement. It describes the intent for all that follows. It sets the context on how The Constitution should be viewed. The second problem with the idea that welfare grants power to provide healthcare is that it says promote the general welfare not provide the general welfare. The goal is not to give things to the American people but to create conditions in which the American people can enrich themselves.

The Preamble:

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

Many would reference the commerce clause (Article I, Section 8, Clause 3). The next logical question is, does the commerce clause apply? The original intent of the commerce clause was to grant Congress legislative authority over international commerce and to insure ease and fair trade between the states. However, there are some limitations to the power of the commerce clause (many which are ignored today). Congress has no regulatory authority over commerce that does not cross state lines. Congress also has no authority to prohibit commerce across state lines, it may only regulate. Any regulation under the commerce clause must be applied equally to each state. Equal protection for the states.

The Commerce Clause:

Congress shall have power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

For the sake of the discussion a patient goes to their doctor for a checkup or a procedure. The patient is receiving a service which is commerce but the doctor or even hospital is local, the transaction it never crosses a state or multiple state lines. Thus the commerce clause does not apply. If the patient traveled to another state to receive the service the commerce clause still does not apply because the transaction is again local. The same is true for the purchasing of health insurance All insurance local to the state, so again the commerce clause does not apply.

The law prohibiting the sales of insurance across state lines (McCarran-Ferguson Act) is an interesting case looking at it through an originalist lens. First, the whole act is unconstitutional regardless of previous supreme court rulings. The act is a prohibition on commerce. This alone is a violation of the commerce clause. Congress may not prohibit commerce between the states. The act essentially lets the federal government act with the power and authority of a state but lets it act as all states. This is a violation of the tenth amendment. The irony of the McCarran-Ferguson Act is that it has created complexities for those looking to nationalize the U.S. Healthcare industry. If one thinks about it, The Affordable Care Act violates the McCarran-Ferguson Act by creating a centralized insurance exchange.

The Tenth Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”.

ObamaCare (The Affordable Care Act) attempted to nationalize activities that fall squarely within the authority of the individual states. Additionally, there is no constitutional authority to guarantee any commercial services be mandated to the populace nor for the federal government to require the consumption of a commercial product. These requirements are both a violation of the ninth and tenth amendments to The Constitution as well as a violation of the intent stated in the Prologue. Congress should not be passing laws that take liberty away from the people. The setting up exchanges in place of the state that decided not participate with a state exchange again violated the tenth amendment. The SCOTUS ruling that the word State means whatever the intent of the authors was is a pure violation of historical precedence and calls into question the legitimacy of the supreme court as anything but a political body.

Medicaid and Medicare also have constitutional issues. The very nature of entitlement funding through the federal government with ever increasing expenditures without formal house appropriation bills to fund these programs violates Article I, Section 7, Clause 1. The question here is whether the House of Representatives has the authority to abdicate its constitutional authority to other institutions? Additionally, these programs are bankrupting the Federal government and need to be addressed.

Article I, Section 7, Clause 1:

All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills

Every time the federal government has involved itself in healthcare it has driven the costs for everyone up. The simplest truth is that there is no governing authority for the federal government to establish a managing presence in healthcare as well as there being no constitutional mandate to insure that commercial services are made available or consumed. Doing any of these things throws The Constitution onto the scrap heap. If healthcare is to be legally addressed at a national level, The Constitution will  need to be amended. Repeal The Affordable Care Act and get out of the way. Let enlightened self-interest and the market place drive the services up and the costs down.