Chief Justice John Roberts and four liberal justice have written an opinion upholding Obamacare which conclusively demonstrates why the Constitution must be construed consistently with the intent of people who wrote it, but even more importantly, with the intent of the people of the 13 states who voted to adopt it in 1789.
The chief justice begins the majority opinion with a statement of law that nobody who has studied the Constitution could possibly disagree with:
"The Federal Government 'is acknowledged by all to be one of enumerated powers.' That is, rather than granting general authority to perform all the conceivable functions of government, the Constitution lists, or enumerates, the Federal Government's powers. ... The Constitution's express conferral of some powers makes clear that it does not grant others. And the federal government 'can exercise only the powers granted to it.'"
From there, the chief justice, goes on to write an opinion that gives the U.S. government a power to tax so extensive, that had it been so explained by the "Federalists" to voters prior to its 1789 ratification, the people of the 13 states would have overwhelmingly voted against it.
Indeed, the opinion grants Congress an unlimited power to tax for the "general welfare" -- a power that no American in his right mind would have voted for in 1789.
Here are excepts from the opinion that show just what the five-judge majority said.
"The Government advances two theories that Congress had constitutional authority to enact the individual mandate. First, the Government argues that Congress had the power to enact the mandate under the Commerce Clause. Under that theory, Congress may order individuals to buy health insurance because the failure to do so affects interstate commerce, and could undercut the Affordable Care Act's other reforms. Second, the Government argues that if the commerce power does not support the mandate, we should nonetheless uphold it as an exercise of Congress' power to tax."
The court did not sustain the constitutionality of the "individual mandate" under the power to "regulate commerce."
What it said in reference to the Commerce Clause, was dicta unnecessary to its ultimate holding, "The Constitution grants Congress the power to 'regulate Commerce.'
"... The power to regulate commerce presupposes the existence of commercial activity to be regulated. "The Framers gave Congress the power to regulate commerce, not to compel it, and for over 200 years both our decisions and Congress's actions have reflected this understanding. There is no reason to depart from that understanding now."
The majority clearly held that under the Commerce Clause the Framers "gave Congress the power to regulate commerce, not to compel it."
That much of the opinion was consistent with the the court's earlier statement that government 'is acknowledged by all to be one of enumerated powers." But all that was unnecessary to the ultimate decision.
The five-judge majority rendered its decision relying on the "taxing power" to, in effect, "regulate commerce" to an extent not authorized by the "commerce power" itself:
"There may, however, be a more fundamental objection to a tax on those who lack health insurance. Even if only a tax, the payment under 5000A(b) remains a burden that the Federal Government imposes for an omission, not an act.
"If it is troubling to interpret the Commerce Clause as authorizing Congress to regulate those who abstain from commerce, perhaps it should be similarly troubling to permit Congress to impose a tax for not doing something."
So, if the intent of the Framers is important, why isn't the intent of the American people who voted to ratify the Constitution in 1789 even more important? Did they have any inkling in 1789 that in voting to ratify the constitution they were authorizing Congress to impose a tax for not doing something?
Under this holding, Congress has to tax you to "provide for the General Welfare:"
-- If you heat your home with natural gas, or if you don't heat your home with solar panels;
-- If you have children, or if you don't have children
-- If you have too many children or not enough children;
-- If you use contraceptives, or if you don't use contraceptives or if you use too many contraceptives, or not enough contraceptives;
-- If you have an abortion, or if you don't have an abortion;
-- If you eat broccoli, or if you don't eat broccoli.
-- If you are too fat, don't go on a diet
-- If you eat anything the government deems unhealthful;
-- If you breathe, inhale oxygen, or exhale CO2;
-- Or if you die.
Are these the powers Americans in 1789 intended to vest in Congress?
What is the point of creating a government of "enumerated powers," if, by use of the "taxing power," government power is unlimited."
Alexander Hamilton's theory of an unlimited "taxing power" as expressed in his "Report on Manufactures to the House of Representatives" has been taken to the extreme by five justices.
The views of Madison, Jefferson, Calhoun and the American people who voted to ratify the Constitution have been relegated to the ash can.
I now see why the figure of justice is always seen wearing a blindfold: it is so she can't see the damage being done to the original intent of our Forefathers by judges writing the opinions.
Posted Online: July 05, 2012, 5:00 a.m. - Quad-Cities Online
by John Donald O'Shea
Copyright 2012, John Donald O'Shea
No comments:
Post a Comment