The “un” Constitutionality of modern government

Let’s face it.  Our modern government does not exactly reflect the Jeffersonian model.  James Madison, the “father of the Constitution”, noted that except in times of war, the federal government should only make up about 10% of all government.  Today, it makes up more than half of all government, and is increasing exponentially.

The Constitution was set up to leave almost all things to the States, with the exception of just a handful of activities (foreign affairs, inter-state commerce, defense, judicial system, etc).

However, over the past century, we’ve liberally loaded certain terms and concepts in the Constitution, to allow for increased federal intrusion into states and personal lives.  Such as the clause “General Welfare” now technically includes specific welfare, right down to the individual.  Commerce now includes anything and everything that may or may not have anything to do with actual commerce.

For this increase, have we gotten our money’s worth?  After spending trillions on welfare, have we won the war on poverty?  After Jimmy Carter created the Dept of Education that has increased with No Child Left Behind and Race to the Top, do we see any real progress? Or do we see our children continuing to fall further  behind other nations?  Has the TSA made our flying experience safer? Or just more encumbered and embarrassing?

When we are forced to submit to a full body scan or pat down, how does that actually support our Constitution’s search and seizure and due process Amendments?

 

When we now have feds imposing their moral requirements of contraceptives and abortifacients onto churches, just how does that ensure freedom of religion? And how does that keep the separation between church and state?

How does having 900+ foreign bases protect the United States?

Does the Constitution allow Congress to not create a budget for over 3 years? Or are they charged with that responsibility, and should be hammered with dereliction of duty and not defending the Constitution by bringing our nation to the brink of bankruptcy?

Are we Americans really to the point of allowing the failure of our Constitution, because we’re so used to being bribed by Congress? Are older people brain washed by the AARP into thinking they have a right to unfunded Medicare Part D, and other unfunded medical care?  Do welfare recipients believe they have a right to welfare allowances that provide them with enough to own cars, cable television, and air conditioning (making them wealthier than most Europeans)?  Do women think that we must finance Planned Parenthood on the federal level? Or that they have a “right” to “free” contraceptives?

I was on the telephone the other day with my mother, who is a Republican and voting for Mitt Romney, and she saw herself and others having such “rights.”  She believes she earned her Medicare Part D, even though she technically didn’t pay a dime into anything for it.

I explained that we have limited resources, and must use them wisely. I gave Dick Cheney’s heart transplant as an example. Here is a 70-ish year old receiving a transplant. Hearts are rare and difficult to replace. Would it not make more sense to use it on a 40 year old, allowing the heart to serve someone for 40 more years, than to have it last just a decade?

So it is with Constitutional resources. They are rare and precious in a world that is self-enamored and believes the world (or fed) owes it a living.  The Constitution only promises one thing: to defend our individual freedoms, so we can do something marvelous with our own lives.

Sadly, we see more and more direct attacks on the Constitution. When there are attacks on the legitimacy of the Supreme Court’s responsibility to determine the constitutionality of laws passed by Congress, then there are deliberate attacks on the Constitution itself, and its balance of powers.

Can we awaken the American people to these great dangers in front of us? Or must we still kick the can down the road, until bankruptcy destroys the economic freedom of the nation, and those who would change or replace the Constitution succeed?

Personally, I do not like the idea of living in a police state.  But perhaps we aren’t too far away from our own 1984 or Brave New World….

12 thoughts on “The “un” Constitutionality of modern government

  1. I have made this point on this site before. You are upset by Obamacare providing “free” contraceptives.
    I again refer you to the case of U.S. V. Lee 455 U.S.232 (1982)in which a radical secular socialist supreme court justice Warren burger held that an Amish business man could be forced to pay into the socail security sytstem even if it violated his sincerely held religous beliefs. Sucessfully arguing the case for the government was another radical socialist attorney Rex Lee who later became president of B.Y.U. The current regulations on contraceptive coverage of the Deparment of Health and Human Services are clearly contitutional under this precedent.

    The indivdual mandate of Obmacare clearly is within the authority of congress to regulated commerce under the commerce clause under the original intent of Justice john marshll and post 1937 precedents. I am quoting from Yale Law porfessor Akil Abmar (I wish I would of thought of this) if you think that Obamacare and the indivdual mandate are unconstitutional read Justice Marshall’s 1824 opinion in McCullough vs. Maryland. Read it again and keep reading it until you understand it.

  2. “The Congress shall have Power – To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers”

    John (#1), may I ask for which Article 1 Section 8 powers Obamacare is necessary and proper for carrying into execution?

  3. article 1 section 8 clause 3 , the commerce clause.

    The whole point of the commerce clause and in a sense the whole contitution is that there are national problems which CANNOT be dealt with on a state level and MUST be dealt with on a national level.

    Health care is a multi billon dollar industry, lack of access has consequences on a national level. Again these cannot be dealt with on a state level.

    People are going to get sick and injured. In am modern society they are going to require medical care. The care will cost money. Most people with the exception of Mitt Romney cannot afford to pay all of or in many cases even a small part of the costs of their health care. Some one through either higher insurance premiums or higher taxes will pay the cost of this uncompensated care. As they said in the old Framm oil filter commercial you can pay me now or your can pay me latter.

    The ONLY was to deal with these realities is some sort of NATIONAL social insurance. Every industrialized society in the world recognizes these realites. The U.S spends a greater % of their GDP on health care than any other industrialized society yet we are way down the list in terms of life expectancy and infant mortaility.

    To get back to McCullough v. Maryland where in the consitution does it say you can set up a national bank?? Justice Marshall wisely recognized that in a society with an economy that was intergated economically you had to interpret the commerce clause broadly. That was true in 1824 and is much more true today.

    Again read McCullogh V. Maryland, read it again and keep reading it until you understand it. Eat your broccoli justice Scalia.

  4. Many nations go through a period of the foxes overrunning the henhouse. Germany in the 1930s, Russia in the 1990s, and now it’s the US’s turn.

    The health care issue is a symptom of a larger problem. Going to the doctor in the US is like hiring 10 electricians to change a light bulb. In other countries, it only takes one. Medicine is the ultimate union shop. Rather than get rid of the other nine electricians, Congress voted them job security.

    The problem at hand is to dislodge the foxes, for which there is no solution on the horizon except for the natural consequences of reaping the whirlwind.

  5. Social Security is viewed as a tax. Obamacare’s mandate was explicitly stated with an imposed “penalty.” Very different reasons behind the two, and so the Supreme Court could very easily determine the mandate as unconstitutional. Why? Because it is not applied fairly. Do we want people being forced to purchase a product, under penalty? I don’t think so.

    Now, if a national health care voucher was instituted, it would fall under the same concept as Social Security and the Amish.

    So, let’s not compare apples with oranges.

  6. What’s interesting to me are the similarities between “Obamacare” and the conservative solution to Social Security–privatization of retirement savings.

    Quite frankly, aside from empty arguments over what is a “tax” and what is a “penalty,” there’s not much difference from a legal perspective. Which makes sense, as “Obamacare” was the proposed Republican solution to our healthcare woes for years and years–from Richard Nixon to Mitt Romney.

  7. Our current system is clearly unconstitutional if you read it like a legal document. If you read it like a religious text with proof-texting, parts that are quietly ignored or “interpreted,” and symbolic and non-literal readings, our current system makes a lot more sense.

  8. Tim,
    its ironic that in the end Obamacare may be struck down because its proponents refused to structure it as a tax, for short-term political gain and to avoid certain legislative procedural wrinkles.
    I’m of two minds about the constitutional argument against the mandate distinguishing action v. inaction, but they don’t apply to “privatized savings account,” i.e., mandatory retirement savings. The difference is that the proposed retirement savings mandate only applies to people who are working, presumably voluntarily.

  9. Tim, I am happy to beat up Republicans and their support of the mandate all day long. The fact that they have changed on this simply is a small sign that they have awakened — albeit much too late and not nearly enough — to the reality that mandating people to buy a product is not a very good idea after all. If only all Americans had awakened to this reality during the 1930s when it came to Social Security and during the 1960s when it came to Medicare and Medicaid and the 1980s when it came to military spending the country would not be on the edge of complete financial collapse. But unfortunately it is. Obamacare just makes an unsustainable mess even more messy.

    I don’t think the “Republicans supported it, so it must be good” argument has legs. Republicans also supported the Patriot Act — does that mean it is good?

  10. A “tax” must apply to some underlying property or activity. Extra money that you have to pay because you do nothing is not a tax, it is a penalty.

    If Congress wanted Obamacare to pass judicial review, what they should have done is raise taxes across the board, and then grant refundable tax credits for the purchase of basic health insurance. That has essentially the same effect, but doesn’t compel anyone to do anything.

  11. “A “tax” must apply to some underlying property or activity. Extra money that you have to pay because you do nothing is not a tax, it is a penalty.”

    Yes, even Justice Ginsburg noted that a law that raises no revenue if it is obeyed cannot be a “tax,” no matter what you call it.

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