The questions being raised as to whether the national health care reform bill is constitutional should give pause to those who hold the Constitution dear, if there are any of those befuddled folk left.
Sen. John Ensign tossed out in his speech on the Floor of the Senate Tuesday questions about whether requiring people to purchase health insurance violates the taking clause of the Fifth Amendment — an argument worthy of thorough judicial review.
But I’m still pondering the whole original intent of the general welfare clause and whether it even allows the federal government to basically redistribute income under the guise of the “general” welfare.
How can the Louisiana Purchase and the Omaha stakes — giving Louisiana extra money due to Katrina and exempting Nebraska from paying its portion of Medicaid, while every other state must tax its citizens to cover this unfunded mandate — jibe with the welfare clause?
I know Justice Benjamin Cardozo folded, spindled and mutilated that qualm during the New Deal by upholding the old age pension and unemployment compensation portions of Social Security. He dismissed classic arguments about the differences between particular and general welfare by granting Congress “middle ground” and room play around in the “penumbra.”
Thomas Jefferson laid down the anti-penumbra argument rather precisely in 1791:
“For the laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose.
“To consider the latter phrase, not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please, which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless. It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please.”
He quickly reminded of a little grammatical chicanery attempted at the time of the drafting of the Constitution by one Gouverneur Morris, who plotted to change the comma after the word excises to a semicolon, precisely for the purpose of expanding the spending power of Congress.
The paragraph in question reads, “The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;”
Lipsky noted, “Had Morris won his semicolon, the spending power would be separate and without limitation.” Oh, the power of a tiny dot.
Lipsky, a former editor at The Wall Street Journal, also singled out the writings and views of Alexander Hamilton, who said appropriation should be “general and not local;” James Madison, who vetoed the Bonus Bill; James Monroe, who vetoed the Cumberland Road Bill; Andrew Jackson, vetoed the Maysville Road bill.
As for the phrase about “all duties, imposts and excises shall be uniform throughout the United States,” Lipsky notes this too is pretty much a lost cause. He writes that the Supreme Court dismissed this silly notion by writing, “It was settled fairly early that the Clause does not require Congress to devise a tax that falls equally or proportionately on each State.”
Nebraska and Louisiana, over in the penumbra, have their fair shares of health reform costs picked up by Nevadans. Uniform means what Congress says it means.