CAN WE, OR CAN WE NOT?

CAN WE, OR CAN WE NOT?
About the powers of the Federal Government.

In regards to the recent approval of the Health Care Bill and the attempts to impede it to become the law of the land, there is a question on the powers of the Federal Government to do, or impose I should say better; conducts, or even expenses on the People, of the United States of America.

Let me start with the Constitution. The Preamble states:

“We the people of the United States in Order to form a more perfect Union, establish justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

On this particular: How do we form a more perfect union, if millions of Americans can only claim to have gained the right to die without medical care? How do we establish justice, if we privilege monetary gain over wellbeing? Carefully note that the founding fathers chose to use the word establish, which means this is not a reality, and that “WE the people” CAN access this justice though the mechanisms established in this same document that we know as our constitution.

Where do we start then? Of course with Article one, Section 1: All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives. Now, have WE passed legislation trough the constitutional mechanisms? YES WE HAVE!

Moreover, in Article 1, Section 8, the US Constitution clearly mandates: “The Congress shall have the Power To lay and collect Taxes, Duties, Impost and Excises, to pay the Debts and provide for the common Defence and General Welfare of the Unite States;…” and here comes the key issue: “…but all Duties, Impost and Excises shall be uniform throughout the United States.” What is then General Welfare? We will enter here a debate between Madison and Hamilton that will find adherents on each side of the aisle. Madison defended the position that it is understood in the Constitution that the General Welfare was for the states to obtain, and Hamilton defended the Federal power to impose and spent those taxes in the General Welfare’s benefit. Jefferson thought that the power was restricted to the power to impose taxes and that the General Welfare was the purpose for which those taxes were to be imposed.

The Courts have also had different opinions in regards to the issue of the General Welfare clause. In 1936, United States vs. Butler, the US Supreme Court sided with the idea that the power of the General Welfare clause was granted to impose and spent taxes in matters affecting the national not the local welfare. Justice Owen Roberts, who wrote the majority opinion, said that the Supreme Court should be the final arbiter to what is in fact the national welfare. Here is where 13 or so Republican State Attorney Generals are aiming. They expect the votes are there (since it is understood that the matter will go all the way up to the Supreme Court) to change the will of the people expressed in Congress.

The history of this issue certainly doesn’t end in 1936. The Supreme Court in 1937, in Helvering vs. Davis, modified and expanded the US vs. Butler Decision in the sense that Congress itself could determine when spending was in the General Welfare. Didn’t this legislation involved a passing though both chambers of Congress? If so, Didn’t Congress already determined by its approval that it is for General Welfare’s? Social Security and Medicare were both passed under this light. Have those ever been repealed by any present or subsequent Congress? Certainly not.

Another argument is the one referring the Commerce Clause. Can the Federal Government impose commerce on the US citizens by forcing us to purchase health insurance? Our republican friends as well as those opposed to the Civil Rights legislation will say no. Is it that absolutely true? Well, the Civil Rights legislation would say that YES WE CAN. How so? If a merchant feels like it is his right to decide not to sell to a customer because he or she is black. Is he on the right side of the law? From the experience, almost any American with or without a legal background will say no, you certainly can’t deny goods or services to anybody for any reason. Therefore, the law can impose business (commerce) on a citizen. There are other examples of impositions like driver’s licenses and car insurance. Even though managed by the states, it is clear that no one in the land is allowed to circulate if they don’t have insurance for their vehicles, and are subject to fines if they don’t.

There is a lot of politics being played with this issue as with any other in our time: name calling, fund raising, publicity seeking, etc. Sarah Paling is the recipient of the best investment of the Republican National Committee. She received $100,000 Dollars in wardrobe money, and now she is going to be paid a million dollars and episode for her TV show. Not to mention that regardless of all the complaints of the McCain people during the campaign, she is coming to the rescue. She might not know what newspapers she reads (if any,) or she might need to be portrayed as an Alaskan Shiva Goddess to fit everything in the palms of her hands, but she comes now pretty handy to reinforce our Vietnam hero.

Pat Buchanan said today in regards to the Republicans being the party of No: “We are the party of the HELL NO!” We know now where the chips are on the betting table. Let’s see if the American people are willing to bet against their own interest.

Alexander Hamilton said in Federal #1: “It has been frequently remarked that is seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether are forever destined to depend for their political constitutions on accident and force”, and he continues to say, “If there be any truth in the remark the crisis at which we are arrived may with propriety be regarded as the era in which that decision is to be made; and a wrong election of the part we shall act may, in this view, deserve to be considered as the general misfortune of mankind”. Finally a quote that I regard as precious: “Happy will it be if our choice should be directed by a judicious estimate of our true interest, unperplexed and unbiased by considerations not connected with the public good.”

There are then some mayor philosophical and political questions to be added to the minutiae of the every day exchange of fire, not to mention the strategic regression of going back to the trench warfare in the age of satellites and drones. Our friends have chosen to dig in and hold a line that pretends to go nowhere. They are counting on fear to get them the votes they need to go back to power. That is all, there is no such a thing as a concern with the American People, only with their ability to cling to the next majority. There has been little said about the Government’s stake on the Citi-Group shares, which sales will provide the Treasury with eight billion dollars more than the ones invested. The republican are in no way interested in discussing or arguing that case. Many of the statements are not even followed by questions. It is a hit and run.

Finally we can conclude that by either and both clauses of the constitution or what my Union brothers would call “Past Practice” (previous legislation in this case) is possible to do what Congress has just done. Yes Congress can mandate on commerce, and yes the general welfare can be invoked. There is a duty of every citizen to form a more perfect union, establish justice and secure the blessings of liberty. The means are at our hand, and despite off the tricornes worn by the Tea Party enthusiast, the real revolutionary spirit is in changing that which needs to be changed in order to attain our original goals as a society. Thomas Paine said in Common sense that “(society) promotes our happiness positively by uniting our affections…(and government) negatively by restraining our vices”. Greed is certainly a vice or our system.

Francis Butters