Posted on 12/14/2010 1:45:47 PM PST by Nachum
Kevin Drum, who I recently learned lives not far from me, has some thoughts on yesterday’s Obamacare decision and the enumerated powers of the Constitution:
The state of Massachusetts can basically do anything it wants as long as it’s arguably rational and not specifically prohibited or reserved to the federal government. And this works out fine, which is why it’s so odd to hear opponents of a federal individual mandate chatter so furiously about slippery slopes and tyranny. After all, the argument goes, if the commerce clause of the constitution is interpreted to mean the federal government can force you to buy health insurance, what can’t the federal government do?
Well, they can’t keep you from owning a gun, they can’t deny you a fair trial, they can’t stop you from voting, and they can’t prohibit you from saying anything you want. Among other things. But if all 50 states in the union can force you to buy health insurance, and none of them have yet turned into tyrannies because of it, why should we think that allowing the federal government the same power might turn it into a tyranny?
He goes on to say that enumerated powers are a weird artifact of history and, perhaps, something we should have improved upon by now.
(Excerpt) Read more at verumserum.com ...
These pretzels are making me thirsty.
I think each of the powers should be represented by an action figure or favorite pop icon.
How about Lady Gaga for Freedom of Speech, Chuck Norris for The Right to Bear Arms, and something really nebulous like Rue Paul for the 10th amendment?
” can basically do anything it wants as long as it’s arguably rational “
I don’t remember any where in my Government Studies Classes where ‘arguably rational’ was in any way a criteria for legislation...
And, history has shown, it surely hasn’t been a criteria in practice.....
All 57 States don’t require you to buy health insurance.
Kevin Drum - look up this guy on Wikipedia. He’s never done anything in his life. NO-thing. Went college, then started writing a blog. He’s never had to get up on time for work, get his work done for the sake of teammates or a project. Take a call in his off-hours to come in and help solve a problem. People like him are stuck in adolescence and get to make money, so they can’t possibly understand what real life is like. I don’t know why anybody listens to them.
As health insurance can’t be sold across state lines, it is not part of interstate commerce and cannot be regulated by Congress. Now if they had mandated it be sold across state lines, they can apply the commerce clause.
Of course, then there’s the speedbump of being “taxed” (read: fined) for not buying something.
Being taxed for inaction is in, effect, a “poll tax,” IE a tax on existence, and I think that’s a no-no, constitutionally speaking.
“they can’t prohibit you from saying anything you want...”
Is this guy on drugs?
“He goes on to say that enumerated powers are a weird artifact of history and, perhaps, something we should have improved upon by now.”
They were “improved on” during the New Deal by ignoring them. They were killed by the Warren Court by ignoring them even more. I don’t know why the author is worrying about enumerated powers. The odds they will have any serious effect on the bloat and power of the feds is small to extremely small.
There is a possibility of relief, here.
In his concurring opinion in the gun rights case of McDonald v. Chicago, Justice Clarence Thomas wrote a brilliant concurring opinion, that was, in effect, a restoration of the 14th Amendment.
In its creation, the 14th Amendment was a godsend to especially black Americans, because it filled an omission of civil liberties within the constitution. In short, it authorized the federal government to intervene on behalf of the people, when a State government had become oppressive to them.
Over time, this idea had become weaker, but with his opinion, Justice Thomas revitalized it into a major principal.
However, this points out a glaring problem still in our constitution.
Prior to 1913, the flip side of the 14th Amendment was that US senators were appointed by the States. This meant that the States, through the US senate, could prevent the federal government from oppressing the people.
But after the 17th Amendment, the direct election of senators, in 1913, the States lost any influence in protecting their citizens from a runaway federal government.
And utterly incapable of controlling itself, this has resulted in such a bloated and oppressive federal government as we must endure today.
But how does this relate to federal and State health care?
Simply put, if the federal government determined that State mandates were oppressive, it could forbid them, though it hasn’t. And conversely, if the States rejected Obamacare, it would have prior to the 17th Amendment, never made it through the US senate.
Arguably rational? Not legally arguable, because it’s relative. Nazi death camps seemed “arguably rational”...TO those with a certain rationale. Does that mean Massachusetts can fire up the trains and gas chambers if enough people don’t complain? Of course not, not in this day and age. No matter how “reasonable” and even convincing your argument for annihilating millions of people, EVERYBODY knows it’s wrong - unless they’re Muslim, but they’ve left “rationality” out in the dumpster.
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