What Would The Founders Say About the Constitutionality of Obama’s Healthcare Bill?
The Enumerated Powers
And as to what powers the federal government was to have within the context of the day and in narrowly construed meanings, Mr. Jefferson sides with those delegating only the enumerated powers specifically written into the Constitution. “Our tenet ever was….that Congress had not unlimited powers to provide for the general welfare, but were restrained to those specifically enumerated, and that, as it was never meant that they should provide for that welfare but by the exercise of the enumerated powers, so it could not have been meant they should raise money for purposes which the enumeration did not place under their action; consequently , that the specification of powers is a limitation of the purposes for which they may raise money.3 The list of powers authorized by the Constitution for the federal government include the following:
The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;
To borrow money on the credit of the United States;
To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;
To establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;
To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;
To provide for the punishment of counterfeiting the securities and current coin of the United States;
To establish post offices and post roads;
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
To constitute tribunals inferior to the Supreme Court;
To define and punish piracies and felonies committed on the high seas, and offences against the law of nations;
To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
To provide and maintain a navy;
To make rules for the government and regulation of the land and naval forces;
To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;
To exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings; — And
To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.
Intent Of Key Provisions
Very clearly, the Constitution grants the federal government the power to collect taxes. It could not be more plainly stated. But it is for what purposes the taxes may be laid that is key. In Mr. Jefferson’s opinion, “This phrase,…by a mere grammatical quibble, has countenanced the General Government in a claim of universal power. For in the phrase, “to lay taxes, to pay the debts and provide for the general welfare,” it is a mere question of syntax, whether the two last infinitives are governed by the first or are distinct and coordinate powers; a question unequivocally decided by the exact definition of powers immediately following.”4 So the intent of the founders was not to give the federal government the power to tax for any purpose, but solely for the purpose of fulfilling the enumerated powers.
No doubt the other “power” that will undergo extreme examination during the coming debate on the constitutionality of the healthcare bill is the “regulation of commerce among the states” clause. In the years since the adoption of the Constitution, this clause has time and again been used to expand the federal government’s reach into commerce to the point that activities having a “substantial effect” on interstate commerce fall under the power of the federal government. Proponents of the healthcare bill will make the case that since this bill “substantially effects” interstate commerce, the legislation is constitutional and within the bounds of federal power. Opponents of the healthcare bill will argue that this bill is not about commerce, it is an unconstitutional mandated “tax” on individuals. Healthcare opponents will take heart that at least one sitting Supreme Court justice has advocated for the abolishment of the “substantial effects” test for constitutionality. While Mr. Jefferson did not have to deal with questions of socialized healthcare and other issues of today, he did comment on the commerce issues of the day by stating “While we pursue, then, the construction of the Legislature, that the repairing and erecting lighthouses, beacons, buoys, and piers, is authorized as belonging to the regulation of commerce, we must take care and not go ahead of them and strain the meaning of the terms still further to the clearing out the channels of all the rivers, etc., of the United States.” 5
What Would Mr. Jefferson Say About The Healthcare Bill?
To the end, Mr. Jefferson argued for limiting the interpretation of the enumerated powers clauses and no doubt would have argued that taxing the nation’s citizens to pay for the healthcare of others is unconstitutional…he would have argued that mandating that citizens purchase anything is outside the realm of the powers bequeathed to Congress and the President is unconstitutional…and he would have argued that “Where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy.”6 Congress has continuously over the past 100 years in America expanded the size and cost of the federal government and as a result, the average number of days to pay federal taxes has risen from 8 days in 1900 to approximately 76 days today. This represents a loss to the average taxpayer of roughly 25% of their work year to taking by the federal government. We can only hope that the Supreme Court gets to hear this crucial case, that they will look to the intent of the enumerated powers, and that they will in fact “nullify the act.”
Notes:
1. Thomas Jefferson to William Johnson, 1823, ME(Memorial Edition) Thomas Jefferson on Politics and Government 1995 Eyler Robert Coates, Sr.
2. Thomas Jefferson: The Anas, 1793, ME 1:408 Thomas Jefferson on Politics and Government 1995 Eyler Robert Coates, Sr.
3. Thomas Jefferson to Albert Gallatin, 1817. ME 15:133 Thomas Jefferson on Politics and Government 1995 Eyler Robert Coates, Sr.
4 Thomas Jefferson to Albert Gallatin, 1817. ME 15:133 Thomas Jefferson on Politics and Government 1995 Eyler Robert Coates, Sr.
5 Thomas Jefferson to Albert Gallatin, 1803. ME 10:379 Thomas Jefferson on Politics and Government 1995 Eyler Robert Coates, Sr.
6 Thomas Jefferson: Draft Kentucky Resolutions, 1798. ME 17:386 Thomas Jefferson on Politics and Government 1995 Eyler Robert Coates, Sr.
Article by Mike Love, published with permission
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