The old liberal three step
By J.J. Jackson
Anyone who has spent any time at all arguing with a more liberal minded person on issues relating to the powers of the federal government knows the old Liberal Three Step. The dance has been around for the better part of the last century and is the tried and true way for people who have no respect for individual liberty, limited government and our Constitution to justify any and every duty they want government to undertake. Once again we are watching this dance being performed over the issue of Obamacare.
The first step in the Liberal Three Step is to cite the "general Welfare" clause of Constitution whenever a liberal has a "great idea" he or she wishes to implement. They claim that the "general Welfare" clause is such a broad grant of power, because it says the word "general", that it gives the federal government near unlimited authority to do whatever Congress or Presidents can dream up. Of course this flies in the face of the truth not to mention the Tenth Amendment.
The first argument I heard for Obamacare (socialized medicine) was this "general Welfare" clause argument. And I heard it often. But it is easily shot full of holes.
First of all our founding fathers specifically stated, on numerous occasions, that the "general Welfare" clause was not a broad, carte blanche grant of power to Congress enabling them to pass any law they saw fit. Alexander Hamilton, who is often misquoted and often misrepresented as some sort of screaming big government liberal, said in Federalist 83, "The plan of the convention declares that the power of Congress, or, in other words, of the national legislature, shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended."
Hamilton further discussed this later on during the debate over the concept of a national bank saying, "the foundation of the Constitution is laid on this ground: 'That all powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved for the States, or to the people.' Whence it is meant to be inferred, that Congress can in no case exercise any power not included in those not enumerated in the Constitution."
James Madison, who is considered the father of the Constitution and the preeminent authority on the document for his time, said in both Federalist 41 and 45 that Congressional powers under the "general Welfare" clause were limited. In the later document he explicitly called them, "few and defined."
Thomas Jefferson in his 1817 letter to Albert Gallatin said on the issue, "Congress had not unlimited powers to provide for the general welfare, but were restrained to those specifically enumerated."
Further, it should be noted, that since this is what our founders understood the term to mean and since there has been no amendment to our Constitution which changes this meaning then we are stuck with that interpretation. Anyone see health care/insurance anywhere in the enumerated powers? Nope? Oh well! There goes the "general Welfare" clause argument down the drain.
Having failed at the "general Welfare" argument, liberals then jump to the second step of their dance. They haul out the Interstate Commerce clause. This clause states Congress has the power, "To regulate Commerce ... and among the several States." Liberals claim this gives them a broad regulatory authority to regulate anything that might be construed as interstate business activity. This clause, they claim, gives them the power to institute Obamacare on the grounds that health insurance companies are interstate entities engaging in commerce between several states.
But now let us return once again to the founding fathers and see what they meant without equivocation. In Federalist 22, Alexander Hamilton said plainly that taxes imposed by individual states, at their discretion without regulation, on goods traveling across their territories from other states would resemble the "constant trammels" of the German empire where such acts had rendered major avenues of commerce "almost useless."(see 4th paragraph) In Federalist 42 James Madison said of the commerce clause that its power was for, "the relief of the States which import and export through other States, from the improper contributions levied on them by the latter." (see 11th paragraph) In Federalist 44 Madison again states that the commerce clause regulates only, "the power of the States over imports and exports." (see 8th paragraph)
In 1878 Madison noted at the Federal Convention that the federal power to deal with interstate commerce was limited. He noted that the issue at hand was a state taxing the products of neighboring states that were either to be sold within their boundaries or that were simply passing through them to other states. Such acts would thus inhibit commerce and the free flow of goods. He said, "it would be unjust to the States whose produce was exported by their neighbours, to leave it subject to be taxed by the latter. This was a grievance which had already filled N. H. Cont. N. Jery. Del: and N. Carolina with loud complaints, as it related to imports, and they would be equally authorized by taxes ... on exports."
In the same notes and on Tuesday, the 21st of August, 1787 Mr. Elseworth said that the power of Congress to make regular trade between the states would, "protect them against each other." Further that, "Should this not be the case, the attempts of one to tax the produce of another passing through its hands, will force a direct exportation and defeat themselves"
Here again we see what the Founders meant by the Commerce Clause. They meant it to be a way to prevent states from infringing upon the commerce of their neighbors; neighbors who either wished to do business within their borders or with other states that would require the travel of goods of one state to pass through them before reaching their final destination in yet another state. This application of the Commerce Clause is not nearly broad enough to allow liberals to succeed in this argument that the Commerce Clause allows them to regulate businesses that happen to do business in multiple states.
So liberals sigh and move to the third step of their dance. This third step is to invoke the Supremacy Clause of the Constitution. The Supremacy Clause is Article VI, Clause 2 and states, "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
The liberal doing his or her little dance claims that because Obamacare is now the law that it is de facto protected by the Supremacy Clause and must be abided by. This is a silly argument to everyone but the liberal making it of course. Logically if Congress does not have the power to pass a law under the Constitution but passes a law anyway should it be considered protected by the Constitution? Liberals, of course, say enthusiastically yes. Of course liberals have always been for arbitrary and capricious government.
Based on this logic however certain conundrums arise. First of all think of a bank robber. Robbing banks is an illegal act. But if someone robs a bank and commits this illegal act does he get to keep the ill gotten gains of his actions? If you apply liberal thought processes protecting Obamacare under the Supremacy Clause of the Constitution then you are left with no other choice but to say that the bank robber's actions are now legitimate because they have happened.
It is pretty simple. An illegal act is undertaken. That illegal act is successful. So, therefore, that illegal act becomes legitimate by default. Yeah, I know, it sounds so stupid when broken down. But that is in a nut shell what liberals are saying in using the Supremacy Clause to argue in favor of Obamacare.
If tomorrow the Congress were to pass a law reinstituting race-based slavery in the United States, in clear violation of the 13th Amendment, would we as citizens just sit back and say, "Oh well ... its the law you know!"
Hell no! We would not do that.
Of course like any dance, the old Liberal Three Step repeats itself. After having gone through three steps and having their arguments thoroughly debunked and shattered the dancer returns to their home position and begin step one all over again. So liberals start back with the "general Welfare" clause argument again which will be debunked again, then move on to the Commerce Clause argument which will be debunked again, and then return to the Supremacy Clause argument only to also have that debunked again. Then they will wash, rinse and repeat as needed hoping beyond hope that at some point if they keep saying the same discredited arguments again and again eventually these arguments will magically become true.
It will not become true. But they hope to be able to change that reality by a sheer force of will and this is what continues to drive them.
J.J. Jackson is a libertarian conservative author from Pittsburgh, PA who has been writing and promoting individual liberty since 1993 and is President of Land of the Free Studios, Inc. He is the Pittsburgh Conservative Examiner for Examiner.com. He is also the owner of The Right Things - Conservative T-shirts & Gifts. His weekly commentary along with exclusives not available anywhere else can be found at http://www.libertyreborn.com.