Would a Congressional mandate that all individuals purchase a gun be Constitutional?
While I am not a lawyer, the simplest explanation for why the Health Care Reform Bill is unconstitional, in my lowly opinion, is that it represents a double jeopardy on the personal freedoms of a human being (Buyer) afforded under the Commerce Clause established by the government (Seller). In which case, the Buyer has one of four choices toward making a decision with the Seller under its rulemaking: 1. It can purchase the product provided by Seller resulting in an economic transaction, 2. It can decide to not purchase the product provided by Seller and be imposed with a fine by Seller within a certain non-compliance period,resulting in an economic transaction that remains in effect with the Buyer even after death or item 1 above is completed, 3. It can decide to not particpate as an agent within the framework of the Sellers regulation, i.e., move into another country, thereby removing its ability to transact with the Seller and reducing the amount of commerce. 4. The ability of the Buyer to do nothing and to terminate its existance,i.e., cease its constitutional right to life and avoid the requirements of the Sellers regulation, resulting in no economic transaction. Without limitation to the law, the Buyer can not pursue the basic freedoms and privelegdes provided for in the Constitution (life, liberty, and the pursuit of happiness) and make a decision other than to affect the commerce of the United States Government as the Bill currently requires. Therefore, the Buyer is placed in double jeopardy because of the Seller's regulation.
Our freedoms were established by a 1 large page document, why can't we continue to live simply in freedom!
The argument that Chemerinsky doesn't make, and probably should is this: NOT buying health insurance, whether or not is considered economic activity does not matter. And that is because if someone who does not have health insurance requires medical assistance, then they must purchase it, and therefore, must engage in an economic activity. Therefore, NOT having health insurance IS economic activity which Congress can regulate under the commerce clause. I would like to hear Rivkin address that issue, because Chemerinsky and Rivkin beat the not purchasing is/is not economic activity argument to death and do not address this important issue.
To sum up Chemerinsky: every human activity has an economic effect, and under the commerce clause the Federal government has the power to regulate economic activity, therefore the Federal government can regulate every human activity, including inactivity, because that has an economic effect as well. That's really all he's saying.
Rivkin concedes too much. Chemerinsky's argument is logically descended from Wickard v Filburn. The truth is that all three branches of government came together in Wickard v Filburn to amend the commerce clause and gave it a completely different meaning and purpose, without following the Article V procedure for enacting amendments. As such, Wickard is bad caselaw, and still stands in diametric opposition to what the words in the constitution actually say.
On Tuesday, March 23, 2010, the President of the United States signed into law the Health Care and Affordability Reconciliation Act of 2010. In reaction to this massive expansion of federal power, several states already filed lawsuits challenging the constitutionality of the law. In defense of the constitutionality of the law, supporters cite two clauses of the United States Constitution they claim gives the federal government the authority to impose this radical legislation on the citizens of the several states. In both cases, however, the supporters are wrong.
First, supporters of the new law claim Article I, Section 8, Clause 1 of the Constitution gives Congress the power to provide for the general welfare of the American people. However, a closer look at the language of the Constitution shows Congress does not possess such power. As stated in Article I, Section 8, Clause 1, “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.” The clause at first glance may appear to give Congress the power to pass any law which provides for the general welfare of the citizenry. However if read carefully, the clause actually grants Congress the power to lay and collect taxes, duties, imposts and excises for a limited purposes of paying debts and providing for the common defense and general welfare of the citizenry. Therefore, the correct interpretation of the clause does not give Congress the power to pass any law for the general welfare of the citizenry but rather gives Congress the power to “to lay and collect taxes, duties, imposts and excises and that power may only be used for three express purposes: (1) to pay the debts of the nation; (2) to provide for the common defense of the nation; and (3) to provide for the general welfare of the citizens. Said another way, the only way Congress can provide for the general welfare of the citizenry is through the use of taxes, duties, imposts and excises but not through mandates requiring citizens to purchase government run health care coverage because the purchase of government health care coverage is not a tax, duty, impost, or excise. Therefore, the reasoning of the supporters of this new law is faulty on at least one ground.
The second clause supporters of the new law state gives Congress the power to impose government run health care on the nation is Article I, Section 8, Clause 3, more familiarly known as the Commerce Clause. The belief that the Commerce Clause gives Congress the power to impose a mandate on the citizenry to purchase Health Care is faulty on several points. First, supporters of the law maintain the Commerce Clause gives Congress the power to regulate all interstate commerce and intrastate commerce affecting interstate commerce. However, a fair reading of the Commerce Clause does not give Congress the power to regulate interstate commerce but rather commerce “among the several states.” The use of the word “among” is important in understanding the actual meaning of the clause.
In the English language, the use of the words “among” and “between” is not interchangeable. The rule for determining which word is appropriate is dependent upon the number of individuals or things being discussed. The use of the word “between” is required whenever two nouns are being discussed. For example, Jane and John will split the cake between each other. The use of the preposition “between” is appropriate here because the group of nouns being discussed is two. Whenever more than two nouns are used, the preposition “among” is used. For example, Jane, John, and Joseph will split the cake among each other. To say Jane, John, and Joseph will split the cake between each other is grammatically incorrect. By relating this rule of English to the written text of the Constitution, it becomes apparent the Constitution does not give Congress the power to regulate all interstate commerce but only interstate commerce among three or more states. Otherwise the founders, who were among (notice among not between because I am discussing more than two men) the smartest and most well educated men of their time would have used the word “between” if they intended to give Congress such power. The framers could have easily written Congress shall have the power to regulate commerce between states but they did not. They specifically used the word “among” because they did not want to give Congress the power to regulate all interstate commerce only interstate commerce among three or more states.
The second misinterpretation made by supporters is that the Commerce Clause allows for the regulation of any commerce which affects interstate commerce. The reliance on this interpretation of the clause comes straight from Supreme Court precedent of the last 70 years. While this precedent has been changed by the Court over the years to only include activities which substantially affect interstate commerce rather than those activities which affect commerce in any way, the interpretation still is not based off of the textual language of the clause itself. Nowhere in the clause do the words “affect” or “interstate” even appear. Therefore, any such interpretation of the clause is faulty and against the very text and intent of the Commerce Clause as written.
Now many, including some of my conservative colleagues, will argue my interpretation of the Commerce Clause throws away years of Supreme Court precedence and they would be right. The legal rule of Stare Decisis does state that legal precedence from former court rulings on an issue decided in the past should be followed and not lightly changed. However, the rule presupposes that the precedent set in the past is based upon logical, rational, and correct legal analysis. The rule does not suggest or require that faulty precedence or interpretations of the law be followed. To hold the rule of Stare Decisis in such reverence is like following a lemming over a cliff not because it is the best course of action or the best decision or will lead to the best result but because it is what lemmings have always done. To continue to hold to the past jurisprudence of the Commerce Clause and refuse to properly interpret its true meaning and therefore the limits of Congressional power would be like throwing our entire system of government over the proverbial cliff simply because that is how it has always been done. I fear if a correct interpretation of the clause is not forwarded by the Supreme Court in deciding the constitutionality of the Health Care and Affordability Reconciliation Act of 2010, our country is sure to find itself crashing upon the rocks with the rest of the lemmings and great world powers of years gone by.