Wednesday, October 21, 2009

Can the Federal government require anyone to buy anything, or is there some Constitutional limit?

In my October 2, 2009 blog entry Constitutional Limits Tested by Health Care Reform? in which I discussed Health-Care Reform and the Constitution: Why hasn't the Commerce Clause been read to allow interstate insurance sales? September 15, 2009 article in the Wall Street Journal by Andrew P. Napolitano, the question was raised, “Can the Federal government require anyone to buy anything, or is there some Constitutional limit?”

The following two well written articles amplify my concerns:

With a Constitution written with a multitude of checks and balances, where have the limits gone? We have slipped down the slippery slope inch by inch to the point that most Americans believe we live in a democracy rather than a limited government.

The constitutional limit in question is the Tenth Amendment, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In other words, the principle was that the Federal Government is one of enumerated and limited powers.

The first slippage was the Supreme Court ruling in 1819 in the McColluch v. Maryland case that the federal government had powers to do things that were implied by a more general grant of power to do things. This was an interpretation of the “Necessary and Proper Clause”, i.e., Article One of the United States Constitution, section 8, clause 18: “The Congress shall have Power - 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.”

Then came the “supremacy clause” in which the federal government supersedes any state action that is in conflict with the federal law in the same subject area. In the New Deal era, a major erosion occurred with the extension of the commerce clause to most anything that might somehow cross state lines or otherwise affect interstate commerce. Then, the protection of the “substantive due process” requirement before property could be taken by the government was gutted. The Court ruled that the means to an end that the government could mandate need only have some rational connection to a legitimate government goal or end. Further, the Congress need not actually have made that rational connection at the time of enacting the law but the Court could do so later if in the use of its imagination it could make that connection.

All this begs the question raised in Jeffrey’s article, “If the federal government can mandate the purchase of health insurance, what stops it from requiring people to buy broccoli, or anything else, for that matter?

Why is this important? Without limits, any government that has supreme authority to do anything or take anything from someone is by definition tyranny – whether it be a monarchy, oligarchy, fascist, or a pure, unlimited democracy. As I pointed out in my October 7, 2009 blog entry Robbing Peter to Pay Paul?

“The hazard is that with a reported 47% of Americans not paying income tax, we have reached the point that the receivers (including the public service employees who also benefit from government transfers, and their liberal sympathizers, such as private union members) are a majority that are being supported by a minority of wealth producers. "The government who robs Peter to pay Paul can always depend on the support of Paul," said George Bernard Shaw.” Without limits, the "have-nots" have to power to take anything they want from the "haves".

We must somehow restore some limits to our Constitutional government, or we face a continued bit by bit loss of our freedoms which we enjoy and take for granted in our free society.

A resource that explains this in much greater detail can be found on Wikipedia’s Tenth Amendment to the United States Constitution with its references to The Tenth Amendment Center, which works to preserve and protect Tenth Amendment freedoms through information and education. The center serves as a forum for the study and exploration of states’ rights issues, focusing primarily on the decentralization of federal government power.

Cornell University Law School Legal Information Institute’s CRS Annotated Constitution Tenth Amendment also contains an excellent detailed legal discussion of the court cases.


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