Skip to comments.The Rotten Basis of Obamacare.
Posted on 06/29/2011 2:33:14 PM PDT by Jacquerie
On August 18th 1787, at the Federal Convention, an Enumerated Power was motioned for addition to our Constitution. That was,
To establish public institutions, rewards, and immunities for the promotion of agriculture, commerce, trades and manufactures.
Say what? Oh yes. Any Freeper knows this did not make its way into Article I Section 8. Instead, the delegates approved the familiar Commerce Clause, To regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes. Direct government involvement in Promotion of commerce, was rejected for regulation of commerce. Big difference, eh?
Well, apparently not to FDRs court some seventy years ago. Under the quiet commerce clause they and subsequent courts blew up limited government. By this, our blackrobes granted Congressional power to regulate any and all economic activity. Statist government could dictate crop subsidies, workplace employment standards, . . . and now, our very lives.
The discarded clause would have opened the door into every corner of our lives, certainly to the extent that Congress could have regulated anything that affected interstate commerce as cited in the laughable and disastrous Wickard v. Filburn decision.
The rejected power would have made Wickard v. Filburn not only unnecessary, but not even thought of, for the national government would have been long involved in every aspect of our lives. The fact of its rejection IMO is further proof that our Framers specifically rejected what FDRs Supreme Court found lurking somewhere in a crease of our Constitution in 1942.
Wickard supplied that which the Framers discarded but the Left demanded. It was their Philosophers Stone. Take a Constitution of limited powers and render it into a Marxist tool of oppression. Unabashedly Leftist contortions of the Commerce clause collectively since the 1930s fail to pass the giggle test.
I am certain our Constitution ultimately means what it says and not what the judicial blackrobes say it means. By like construction, the blackrobes cannot legitimately force on us an enumerated power specifically rejected by our Framers. Wickard and all subsequent rot leading to the final elimination of liberty under the Obamacare Enabling Act have no basis whatsoever in our beloved Constitution. But you already knew that.
Just remember, Wickard and Obamacare were rejected in 1787.
Many T’anks for this posting—and for reminding me of it.
The more I learn of our history the more I know I don’t know nuthin.It was easier when I was a teenager and knew everything.
Veto of federal public works bill
March 3, 1817
To the House of Representatives of the United States:
Having considered the bill this day presented to me entitled “An act to set apart and pledge certain funds for internal improvements,” and which sets apart and pledges funds “for constructing roads and canals, and improving the navigation of water courses, in order to facilitate, promote, and give security to internal commerce among the several States, and to render more easy and less expensive the means and provisions for the common defense,” I am constrained by the insuperable difficulty I feel in reconciling the bill with the Constitution of the United States to return it with that objection to the House of Representatives, in which it originated.
The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers, or that it falls by any just interpretation with the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in the Government of the United States.
“The power to regulate commerce among the several States” can not include a power to construct roads and canals, and to improve the navigation of water courses in order to facilitate, promote, and secure such commerce with a latitude of construction departing from the ordinary import of the terms strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress.
To refer the power in question to the clause “to provide for common defense and general welfare” would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms “common defense and general welfare” embracing every object and act within the purview of a legislative trust. It would have the effect of subjecting both the Constitution and laws of the several States in all cases not specifically exempted to be superseded by laws of Congress, it being expressly declared “that the Constitution of the United States and laws made in pursuance thereof shall be the supreme law of the land, and the judges of every state shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.” Such a view of the Constitution, finally, would have the effect of excluding the judicial authority of the United States from its participation in guarding the boundary between the legislative powers of the General and the State Governments, inasmuch as questions relating to the general welfare, being questions of policy and expediency, are unsusceptible of judicial cognizance and decision.
A restriction of the power “to provide for the common defense and general welfare” to cases which are to be provided for by the expenditure of money would still leave within the legislative power of Congress all the great and most important measures of Government, money being the ordinary and necessary means of carrying them into execution.
If a general power to construct roads and canals, and to improve the navigation of water courses, with the train of powers incident thereto, be not possessed by Congress, the assent of the States in the mode provided in the bill can not confer the power. The only cases in which the consent and cession of particular States can extend the power of Congress are those specified and provided for in the Constitution.
I am not unaware of the great importance of roads and canals and the improved navigation of water courses, and that a power in the National Legislature to provide for them might be exercised with signal advantage to the general prosperity. But seeing that such a power is not expressly given by the Constitution, and believing that it can not be deduced from any part of it without an inadmissible latitude of construction and reliance on insufficient prece-dents; believing also that the permanent success of the Constitution depends on a definite partition of powers between the General and the State Governments, and that no adequate landmarks would be left by the constructive extension of the powers of Congress as proposed in the bill, I have no option but to withhold my signature from it, and to cherishing the hope that its beneficial objects may be attained by a resort for the necessary powers to the same wisdom and virtue in the nation which established the Constitution in its actual form and providently marked out in the instrument itself a safe and practicable mode of improving it as experience might suggest.
James Madison, President of the United States
Thanks for the Ping. KC <In lurk mode.
Is your source the Papers of James Madison or his Writings, or . . . ?
Thanks for the ping. To read Madison’s words and follow their inexorable logic is at once wonderful and painful. It is wonderful at the remove of two centuries to be reminded of the brilliance of our Constitution and that of the men who help craft it. It is equally painful to consider how far we, in our time have fallen from the pinnacle of reason that first impelled such people to risk all they had for a vision of rare self-governance.
...it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged.
Here is Madison explaining the power to regulate commerce with foreign nations:
Taken together, the above two letters clearly lay out the purpose of each power and how they are different.
You are a gem, sir. Now we need this in broad and general circulation as it is not taught at all across our great land.
Jones & Laughlin Steel, Darby, and Wickard ushered in an era of Commerce Clause jurisprudence that greatly expanded the previously defined authority of Congress under that Clause. In part, this was a recognition of the great changes that had occurred in the way business was carried on in this country. Enterprises that had once been local or at most regional in nature had become national in scope. But the doctrinal change also reflected a view that earlier Commerce Clause cases artificially had constrained the authority of Congress to regulate interstate commerce.
It is patently obvious that Rehnquist is wrong, utterly wrong in his analysis and conflicted in his conclusions.
If "Jones & Laughlin Steel, Darby, and Wickard ushered in an era of Commerce Clause jurisprudence that greatly expanded the previously defined authority of Congress under that Clause" is true then what follows?:
1. The Court expanded the defined authority of Congress.
2. What was the previously defined authority of Congress as regards the Commerce Clause? The Constitution itself which prior jurisprudence simply and strictly followed.
3. That document itself contains the only method of expanding the defined authority of Congress or any branch of the United States Government - Constitutional Amendment.
4. The SCOTUS has no authority to expand the Constitution per that selfsame American Contract.
Taking the second part of Rehnquists statement we find that "earlier Commerce Clause cases artificially had constrained the authority of Congress to regulate interstate commerce". What was the means of this 'artificial' constraint? By what source was Congress constrained?
The legal definition of 'artificial' is
1 a : made by humans compare NATURAL b : caused or produced by a human and esp. social or political agency artificial price advantage>
2 : arising through operation of law ar·ti·fi·cial·ly adverb
Definition 1. is a truism for all human laws, but if our Constitution is God-made clearly false and if our Constitution is based on Natural Law clearly false again. Definition 2. makes a joke of Rehnquist's statement. So Rehnquist doesn't mean artificial in the legal sense, but in the colloquial sense of 'not genuine; pretended; or assumed'.
If that is the case, then Rehnquist's statement is a direct attack against the Constitution itself. It cannot be anything else as prior jurisprudence held to the limited government interpretation of the Constitution itself. Rehnquist's statement is a bold admission that the expansion of the Commerce Clause by the SCOTUS is a repudiation of the Constitution of the United States of America.
Rehnquist assumes that a proper interpretation of Congressional authority, had it been correctly defined in the past, would have allowed for an expansive control by the legislative branch over a broad swath of economic activity "among the several States". Although he does not say so in the text you've quoted, he appears to rely not only on the specific, enumerated powers granted under Article I, Section 8, Clause 3, but also upon the "Necessary and Proper Clause" that follows later in Article 1 Section 8.
As a strict constructionist, I (and many others) reject both the preliminary reading of the Commerce Clause as a broad grant of power and the elastic use of the later clause to permit anything other than the execution of power already granted by the Constitution.
In any event, I do not believe that Rehnquist intended to imply a Judicial power to expand the authority of the legislative branch by fiat, but because he believed that Congress always possessed the authority finally "recognized" in Jones, Darby and Wickard, et al.
I believe he was profoundly mistaken, and as such, Alexander Hamilton's faith that the Necessary and Proper Clause would be constrained by the clear language of the Constitution in its grant of enumerated powers (see Federalist #44) appears to me to have been tragically misplaced.
Instead, the innocuous commerce clause has been turned on its head and abused as a tool to aggrandize federal power at the expense of the States, in direct violation of the Constitution. If this simple clause can be so construed as to deny powers that legitimately reside with the States, well, there is no philosphical limit to federal powers.
In the Obamacare lawsuit, two out of three appellate judges last week voted to enslave a once free people.
T’anks. And I think you are correct in your assessment.But I was never trained in the metaphysical refinements and tests of logical skill so many others enjoy. Someone once said the Law is like an onion in its many layers. And the Court is like a monkey that will open up that onion as as it is allowed —
or until another distraction causes it to discard the onion for other pursuits. When I read your post— Justice Rhenquist -and educated and a fine man from what I have read reminded me of that illustration IF the constitution is seen as an artificial restraint then does not say that which we believed true is nothing but an apparation/haint.
Take a look at this thread. I think you’ll find this information worthwhile to the homeschooling list.
It’s something every homeschool child and parent should know. Then teach two others.
I will not pay for Obamacare or any other forced insurance for healthcare, and I won’t go to jail for it either, I’m too old and I have had a kinda full life.
I understand. You won’t be alone. A country founded on the basis of Natural Rights has a government that oppresses its people at every turn.
Thanks. How did you come across this two month old posting?
You linked back to it on a post I was reading... I think it was the Justice Thomas one I’m reading right now.
Indeed, they simply "amended" the Constitution without the bother of amending it.
I can’t say I understand everything you post but I am glad you do so I can read it.
OUTSTANDING post/thread! Thanks to every poster.
The key to ridding ourselves of Wickard is to show the court why it is totally unnecessary in order to meet the "regulatory needs" (health, safety, environmental protection, etc.) they perceive that the society at large has supposedly demanded of the Federal government. Not only were these powers to be retained by the States, but the actual needs themselves are replaceable by a vibrant market in risk-management.
What we have effectively done with regulation is to have nationalized the insurance industry in the name of protecting its investors from out-of-control tort law. The problem is that manipulating such powers then become playthings for politicians and empires for bureaucrats all feeding a corrupt corporate/foundation machine. The reality of Wickard has finally come home to roost.
That power was expanded yet farther in the use of treaties held at the UN to internationalize regulation, abetting corporate scale yet farther. Yet there is no doubt that the agenda to internationalize our laws was in place before the ink was dry on the Constitution itself, as discussed here.
The result has been a corrupt corporate racket in regulation as discussed here and here. The fix is to understand that regulatory functions are actually a form of risk management. Effectively, nearly every function of regulatory government can be replaced by correctly designed markets with particular focus upon automating transaction costs, contract negotiations, and reining in tort, as discussed here.
Yeah, I know, I'm flogging my own work. :-) I just wanted to point out that both the problem and the fixes have been there all along and that the agency has been claque of Masonic bankers' hatchet-men in black robes. Marxists, corporate fascists, they're all the same. Some are more equal than others.
At the Constitutional Convention, Roger Sherman twice submitted a clause that reserved the police power to the States, “that no State shall without its consent be affected in its internal police, or deprived of its equal suffrage in the Senate.” The last clause made the Constitution, but alas, not the first. It is a shame his police power clause did not make the cut, maybe it would have made a difference, but then again, the Left are expert at twisting plain language to their purpose, like the innocuous commerce clause.
Wickard is constitutional fantasy. Until Scotus is willing to pitch 80 years of rot, to scrape off the many layers of flawed judicial scabs atop our Constitution, we are screwed.
Actually, I don't think you can. Long ago realizing that I needed standing by which to bring a case against the environmental regulation monster, I patented the first such free-market business method. Still, I lacked acknowledgement for technical expertise. So I've spent the last ten years, much of it on our hands and knees, restoring our land to a level of purity in native plant habitat never before achieved by the bureaucrats. We're there.
I'm just starting to get that acknowledgement at least verbally, but what do you know who is in charge of controlling whether or not I get to publish my results but the very State bureaucrats, NGO flunkies, and grant-hustling academics dependent upon the system. I'll beat them eventually, because I've got what they know very well they could never do. It's too much work.
As an adjunct to that work was learning a perspective that, together with my background in product development and manufacturing in both the military and medical device business, rendered me uniquely qualified to discover a long lost Biblical paradigm, one that transforms our understanding of the Bible. I know, it sounds weird, but it's true. They key to Israel's national survival was the Sabbath for the Land. How it was supposed to work was long lost and remains undiscovered to Biblical scholarship.
OK, so as to "frustration," try telling Christians and Jews that the Mosaic Law mandates that they be prepared to release and abandon their land for one year out of seven to be left to be managed by the poor. Try telling them that it was the key element in a system of national civil defense based upon a militia trained in guerilla warfare. Try telling them that the system explains much of what seems metaphorical in the New Testament, particularly the Sermon on the Mount. Try telling them that the Cain and Abel story is a metaphorical teaching on how agro-urban civilization destroyed its pastoral progenitors by assimilation (not by conflict), and that it predicts the temporality of every agro-urban civilization thereafter.
The Sabbath for the Land was the foundation of a remarkable system of national defense and social welfare that has never been fully understood, until now.
OK so here's the frustration: You've got this amazing system in which people supposedly already believe... all you have to do is explain it to them. Yet once they start to realize that it's true, they won't read it any further. Just like ancient Israel before the exile, they just don't want to DO it.
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