Health Care Bill Constitutionality?

[KingMerv00]

As I understand it, constructionism(sp???) doesn't put a limit on State Powers. And since libel laws are State Laws... well, I'm sure you get why I'm confused.

I guess I haven't made my point clear so let me try again:

1) Strict constructionism is the reading of the constitution in a very literal light. BB seems to be a fan of this.

2) The first amendment can overturn state law.

3) The first amendment says there shall be "no law ... abridging the freedom of speech".

4) "No law" means "no law". If BB is to remain consistent in his literal interpretation, he would have to say that libel laws are a unfair restriction on freedom of speech.


Edit: I am aware BB could complain about #2. I want to see if he will.

 

[Newtons Bit]

I guess I haven't made my point clear so let me try again:

1) Strict constructionism is the reading of the constitution in a very literal light. BB seems to be a fan of this.

2) The first amendment can overturn state law.

3) The first amendment says there shall be "no law ... abridging the freedom of speech".

4) "No law" means "no law". If BB is to remain consistent in his literal interpretation, he would have to say that libel laws are a unfair restriction on freedom of speech.


Edit: I am aware BB could complain about #2. I want to see if he will.

Yes, however you need the 14th amendment to incorporate that to the States as the 1st amendment states that, "Congress shall pass no law..." And then it starts getting REALLY hazy from there.

The Supreme Courts, until recently, have quite frequently found ways of allowing Congress to subvert the 1st amendment (the various sedition acts come to mind). What I find interesting is that people on both side of the aisle encourage a fairly rigid reading and interpretation of the 1st amendment. No one wants to see that particular limit on government powers to be eroded away like many other limits have been over the years.

 

[dann]

And what about the "Individual Mandate". What section of the Constitution gives the Federal government the power to force individuals to buy products under threat of criminal penalty?

You can hear the answers to the following questions at a lecture on Sunday, Jan 3, in California:

Why, right in the middle of the free market economy, is healthcare such a thoroughly governmental affair?
What does the state take care of when it takes care of the “health of the nation” and why?
Why is healthcare always considered too expensive and in constant need of reform?

But you probably will not like the answers.

 

[KingMerv00]

Yes, however you need the 14th amendment to incorporate that to the States as the 1st amendment states that, "Congress shall pass no law..." And then it starts getting REALLY hazy from there.

Stop answering my questions to BB! I want to see what HE objects to.

Unless you consider yourself a constitutional literalist...in which case, I can talk to you instead.

 

[Newtons Bit]

Stop answering my questions to BB! I want to see what HE objects to.

Unless you consider yourself a constitutional literalist...in which case, I can talk to you instead.

Sorry! I'm not trying to ruin your argument.

I am someone who feels that the Constitution should be taken rather literally. However I also understand that the Supreme Court does not share that philosophy and the majority of the country has moved away from the concept of a limited Federal Government.

 

[KingMerv00]

Sorry! I'm not trying to ruin your argument.

I am someone who feels that the Constitution should be taken rather literally. However I also understand that the Supreme Court does not share that philosophy and the majority of the country has moved away from the concept of a limited Federal Government.

Do you think the Bill of Rights (or parts of it at least) should apply to the states?

For example, if a state passed a law that instituted the death penalty for teaching evolution, would you strike it down if you were the judge? (Assuming of course it didn't violate the state constitution.)

 

[Newtons Bit]

Do you think the Bill of Rights (or parts of it at least) should apply to the states?

For example, if a state passed a law that instituted the death penalty for teaching evolution, would you strike it down if you were the judge? (Assuming of course it didn't violate the state constitution.)

Only if it were to be found to violate the 14th amendment, which if you're not aware, applies most of the protections of the Bill of Rights to the States in a fairly vague way.

If the teacher was a public employee and was teaching a subject matter prohibited by the State in the classroom then it is at the State's particular discretion for punishing people for wasting the State's time and resources. Execution is a bit extreme for something like that but I don't know of anything off-hand that would prohibit it.

Now if this was a non-public employee teaching in a private setting, it's a completely different matter. There are all manner of protections on that: freedom of speech, freedom of religion, right to assemble (hey we're still in the 1st amendment!).

 

[KingMerv00]

Only if it were to be found to violate the 14th amendment, which if you're not aware, applies most of the protections of the Bill of Rights to the States in a fairly vague way.

If the teacher was a public employee and was teaching a subject matter prohibited by the State in the classroom then it is at the State's particular discretion for punishing people for wasting the State's time and resources. Execution is a bit extreme for something like that but I don't know of anything off-hand that would prohibit it.

Now if this was a non-public employee teaching in a private setting, it's a completely different matter. There are all manner of protections on that: freedom of speech, freedom of religion, right to assemble (hey we're still in the 1st amendment!).

I don't think I get it. A public employee could be punished but private employee could not? Where does it say that in the 14th amendment?

I suppose I'll admit this is also an issue of pragmatism vs. idealism. I wouldn't want to live in a country where states have the power to ignore fundamental rights. Strict constructionism sounds good on paper but leads to things like Jim Crow.

 

[DDWW]

Using whatever criteria congress and the president used to constitutionally justify passing this health control/reform bill:

What exactly cannot be controlled/reformed/banned?


DDWW

 

[tyr_13]

Anything not clearly related to the general welfare.

 

[DDWW]

Anything not clearly related to the general welfare.

Banning guns?

Banning religions?

Banning some talk radio hosts?

Etc. Etc. Etc.

All could be justified as relating to the general welfare.

 

[drkitten]

Using whatever criteria congress and the president used to constitutionally justify passing this health control/reform bill:

What exactly cannot be controlled/reformed/banned?

Well, obviously anything not related to the enumerated power of Congress cannot be regulated -- but "general welfare" is one of those powers. It's not clear that a federal law banning painting your house fairy-pink would qualify as part of the "general welfare." Legally speaking, if there is no "rational basis" for a government action, the courts will strike it down. So the burden of proof would be on the government to explain to the courts' satisfaction how house color restrictions promote the general welfare.

Similarly, anything that exceeds the other restrictions placed on Congress through the Bill of Rights cannot be regulated. Even if we accept that house color generally can have an effect on the "general welfare," exceptions would need to be carved out for those of a particular religion that demanded house-painting of a particular color/style. (Some varieties of Islam would qualify.) This is because the Constitution, and the first amendment in particular, trump "mere" law. Again, the state would need to explain why this restriction does not unduly restrict the local Imam's ability to exercise his religion freely, and if the court is not convinced, the court will strike this measure down.

 

[Newtons Bit]

I don't think I get it. A public employee could be punished but private employee could not? Where does it say that in the 14th amendment?

I stated that a State can punish one of its employees for wasting resources by teaching an unapproved topic in a classroom. Outside of that setting, I can't see your hypothetical as being constitutional.

I suppose I'll admit this is also an issue of pragmatism vs. idealism. I wouldn't want to live in a country where states have the power to ignore fundamental rights. Strict constructionism sounds good on paper but leads to things like Jim Crow.

Which is why the 14th amendment was written in the first place. Before then, the Bill of Rights did not apply to the States, only to the Federal government.

I think you need to read up on it.

Amending the Constitution is the appropriate way to change the powers of the Federal Government, not using sort of vague clauses which, when written, did not intend to grant such powers.

 

[drkitten]

Amending the Constitution is the appropriate way to change the powers of the Federal Government, not using sort of vague clauses which, when written, did not intend to grant such powers.

And thus you support the immediate disbanding of the Air Force until the appropriate amendments pass to make it explicit that the "common defense" includes airspace defense as well?

Why is vagueness about "common defense" acceptable, while vagueness about "general welfare" isn't?

 

[Newtons Bit]

And thus you support the immediate disbanding of the Air Force until the appropriate amendments pass to make it explicit that the "common defense" includes airspace defense as well?

No.

Why is vagueness about "common defense" acceptable, while vagueness about "general welfare" isn't?

I don't know. Why is it?

 

[drkitten]

I don't know. Why is it?

I submit that they are both acceptable, and that the establishment of a national health care system to promote the "general welfare" is as legitimate a use of federal power as the establishment of a national air force to provide for the "common defense."

The commerce clause doesn't even need to enter into it. Just as the framers did not foresee airspace control being an important part of "defence" (which is reasonable, since the military use of air technology didn't begin until the mid-19th century and wasn't widespread until the mid-20th), so the framers didn't foresee health insurance being an important part of "general welfare." And for the same reason -- health insurance wasn't invented until the middle of the 19th century and didn't become widespread until the mid-20th.

The founders did, however, foresee a need for the government to be responsive to changing conditions, which is why they put the "necessary and proper" clause into the constitution. If it is now "necessary" for health insurance to be part of the "general welfare," Congress has the authority to create any proper regulations as it sees fit.

 

[DDWW]

This is because the Constitution, and the first amendment in particular, trump "mere" law. Again, the state would need to explain why this restriction does not unduly restrict the local Imam's ability to exercise his religion freely, and if the court is not convinced, the court will strike this measure down.

The people in power now are saying that the General welfare provision trumps the Tenth Amendment as there are no powers specifically delegated to the United States for Universal Health Care.

The people next in power can trump any other amendment as long as they get the courts to agree that it is for the “General Welfare.”

That is why we have rule books.

That is why football referees cannot change the rules on the field for the general welfare of the fans.

 

[KingMerv00]

I stated that a State can punish one of its employees for wasting resources by teaching an unapproved topic in a classroom. Outside of that setting, I can't see your hypothetical as being constitutional.



Which is why the 14th amendment was written in the first place. Before then, the Bill of Rights did not apply to the States, only to the Federal government.

I think you need to read up on it.

No thanks. I know it well enough. I just think I'm misunderstanding your position. You think the 14th amendment DOES incorporate the bill of rights then, yes?

Amending the Constitution is the appropriate way to change the powers of the Federal Government, not using sort of vague clauses which, when written, did not intend to grant such powers.

So ignore the clause you don't like because you think they are too vague?

 

[drkitten]

The people in power now are saying that the General welfare provision trumps the Tenth Amendment as there are no powers specifically delegated to the United States for Universal Health Care.

No, that's not what they're saying. They're saying that providing for the general welfare is a power specifically delegated to the United States.

And they're right. Article I, clause 8: "The Congress shall have Power ... to provide for the common Defence and general Welfare of the United States"

 

[JoeTheJuggler]

Banning guns?

Banning religions?

Banning some talk radio hosts?

Etc. Etc. Etc.

All could be justified as relating to the general welfare.

Except you'd run into conflicts with the first couple of Amendments. . .not to mention the "necessary and proper" clause.

I don't think you could ever justify banning guns, religions or some talk radio hosts (whatever that means) using Article 1 Section 8.