With mandates, it is all in the Principle

From the TYSK Insider Newsletter dated: 29 March 2010
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Over the weekend and at other times as well, Obama acolytes frequently try to rebut the charge that the mandate for all Americans to purchase health care insurance is nothing more than what was enacted in Massachusetts under, then, Governor Mitt Romney. As you may suspect, this is a specious argument.

Even a casual understanding of the two implementations of a mandate to purchase health care coverage reveals that there is no real similarity between the two both in scope or, in the manner implemented. The progressives ignore that point completely. Their reply to that observation is simply that, "the principle is the same".

Therefore, the discussion boils down to understanding the meaning of "principle". This is where big government liberals demonstrate their lack of understanding of the principles under which our nation was founded and why the Massachusetts law has absolutely no relevance at all. I suspect many in the press, academia and others that should know better do not as well. I don't want you folks to fall into that category, so here goes.

The seminal principle is the notion of federalism** as put forth in the Constitution.

After the time of its writing, the original Articles of Confederation were found to be wanting because there was no central authority that could regulate, and therefore truly unite, the various individual sovereign states. The founders had a very tricky proposition before them. How to write a constitution with the force of law that would unite the states under a central government without trampling on the sovereign rights each of the states already possessed and enjoyed?

Sovereign states. What do we mean by that exactly? With the defeat of the British and our independence, all of the former colonies became individual states. Each with its own central government and legislative body. Each had its own leader, the governor. They were no different than any other free state. Think Spain, France, Germany or any other nation with a leader and a government. In fact, the states were free to, and did, make arrangements (treaties) with other governments.

In Philadelphia the founders had to find some way to put an umbrella over all these free states and form a central government without trampling on the rights of free states that were theirs already. Therefore, the new Constitution had to have a key principle.

The Principle

Along with the minutia of the nuts and bolts of branches, elections, terms, etc., the key ingredient, the main purpose of the Constitution, was to expressly limit the powers this new national law would grant to the federal government. The states had to be guaranteed of this limit or they never would ratify the Constitution. In fact, several of the states demanded extra, explicit language ensuring these limits in addition to those already in the document itself and would only sign off with the assurance such language would be forthcoming. This lead to the ten amendments that were immediately passed into law following ratification of the Constitution – the Bill of Rights.

The Bill of Rights are mostly thought of in terms of establishing individual rights, but also ensured States' Rights. A clear example of this is the (hollowed) First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” This was a limit on federal powers, not state powers.

At the time of the debate over the ratification of the Constitution, if the states would have been denied the right to establish a state religion, the new form of government would never have been adopted! Why? Because at that time several of the states did have a state supported religion already! The Bill of Rights was there for both individuals and the states to be assured of their already existing rights. [Here is a reference document: http://www.loc.gov/exhibits/religion/rel05.html]

So the overriding principle of the Constitution was the limit on the federal government. The feds could only legally do certain very limited things in the way of legislation. Most of the federal power was directed toward dealing with external affairs with other nations. To this day this limitation drives the big government folks nuts and, since the Civil War ended has been widely abused to the point where almost no limits are acknowledged in Washington.

Understanding this principle should make it perfectly clear that while Massachusetts may legally pass a law requiring mandatory insurance for all its sovereign citizens, it is totally illegal for the federal government to do likewise.

But what of the "commerce clause" [Article I, Section 8, Clause 3]? This is perhaps the most disputed and debated clause within the Constitution and has been used to justify the ever expanding reach of the federal government since Gibbons v. Ogden (1824). [See, The Heritage Guide to the Constitution, pgs 101-106] Because of this I have serious doubts of defeating Obamacare using this vehicle as it is entirely at the whim of SCOTUS.

I am in no way a lawyer, but I would put my money on defeating Obama's health care plan using the principle of States' Rights versus the limitations imposed on the federal government as indicated in the 10th 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.”

I hope I am right. At least now you know why the comparison of Massachusetts' law to Obamacare is bogus. Feel free to now explain it to your liberal friends.

** Federalism is a political concept in which a group of members are bound together by covenant with a governing representative head. 

Note: Some formatting from the original newsletter may be lost in this reprint.

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