Townhall.com The Blogspot for Political, Conservative and Republican Blogs and Bloggers

But there is another issue that we have raised and will keep raising as the debate goes forward: The constitutionality of the Democratic plans.

When Speaker Nancy Pelosi was asked recently at the introduction of her mammoth health care “reform” bill if the measure was constitutional, the usually glib Californian was caught off-guard.  “Are you serious?” she asked.  And, a second time, “Are you serious?”  She then turned to another reporter without answering further.

At least House Majority Leader Steny Hoyer gives the Constitution a guilty nod.  He says that the “general welfare” clause gives Congress the right to pass a massive health care bill full of mandates on businesses and individuals and higher taxes for all.

Mr. Hoyer’s theory of constitutional interpretation would surprise the document’s chief author, James Madison.  In a letter written in 1831, he said, “With respect to the words general welfare, I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.”

In other words, the Constitution gives the federal government few and closely proscribed powers.  Those powers not given to the federal government “shall not be construed to deny or disparage others retained by the people” (the Ninth Amendment), and “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 Tenth Amendment).

The “general welfare,” then, refers only to those things the Constitution allows or requires the federal government to do (“the powers connected with them” under the Constitution).   Thus, the general welfare is advanced when the federal government does those things it is charged by the Constitution to do – nothing more, nothing less.

The “general welfare” clause is not an open-ended endorsement of whatever Congress deems in a given moment is in the public interest.  Were that the meaning of “general welfare,” no Constitution itself would even be necessary – Congress could simply do whatever it wants regardless of any constitutional limitations.

Of course, that’s what Congress does most of the time anyway.  But at least conservatives can appeal to a written text whose meaning is clear.  Were it not, why have a provision for its amendment (why amend something you can simply reinterpret?) and why have an existing and profoundly important amendment that says those things not delegated to the federal government are in the hands of the states (the Tenth)?

Another supporter of Congress’s health care power grab, Dean Erwin Cherminsky of the University of California, Irvine School of Law, argues that Congress can enact sweeping health reform under the Interstate Commerce Clause (Article I, Section 8).  His reasoning?  The “cumulative impact” of health care activity “across the country.”

Dean Cherminsky cites “an unbroken line of precedents stretching back 70 years.”  But nowhere does he cite something far more significant – indeed, conclusive – than the rulings of positivist, post-New Deal courts: The original intent of the Constitution’s authors and signers.

As noted by Georgetown University Law Center professor Randy E. Barnett in the University of Chicago Law Review (former Chicago Law Professor Obama, are you listening?), “according to the original meaning of the Commerce Clause, Congress has power to specify rules to govern the manner by which people may exchange or trade goods from one state to another, to remove obstructions to domestic trade erected by states, and to both regulate and restrict the flow of goods to and from other nations (and the Indian tribes) for the purpose of promoting the domestic economy and foreign trade.”

Put a bit more simply, the Clause was simply designed to prevent multiple barriers to trade among the various states.  The Clause was “a necessary control on the conduct of some of the importing States toward their non-importing neighbors” (James Madison, 1832).  It was never intended to serve as a pretext for Congress to micromanage, control and/or fund (through taxation) any national economic program, including one that would concentrate regulatory and competitive power over medical care in the hands of the U.S. government.

There is no constitutional basis for the Obama/Pelosi/Baucus approach to health reform.  Period.  Let us not delude ourselves that this is a serious constitutional debate – the debate does not exist, at least within the realm of intellectual honesty.  It is settled.

The Democratic Congress does not care, nor does the President, nor do many Republicans.  But “we, the People,” should, especially if we care about remaining a nation whose God-bestowed liberties and rights are protected not by the legislative confections of Congress but by a written Constitution whose text defends us from the intrusions of the federal state – if, but only if, we are willing to follow it.

Robert Schwarzwalder has served as chief of staff to two Members of Congress and was a presidential appointee under George W. Bush at the Department of Health and Human Services.