Note: Third in a series
If you are a fetus, it is "legal" for your mother to kill you. But is it "moral?" That is what this battle between President Obama and the Catholic bishops is all about.
The bishops contend that it remains "immoral" for a woman to kill her fetus, even if the government says, "it's legal." For the bishops, "legal" does not equal "moral." So, does something become "moral" when it is declared "legal?"
In 1857, Chief Justice Roger B. Taney penned the majority opinion in the Dred Scott case. He framed the issue as follows: "The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges and immunities, guarantied by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution."
His answer was as follows: "It is difficult at this day to realize the state of public opinion in relation to that unfortunate (black) race, which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted. But the public history of every European nation displays it in a manner too plain to be mistaken. They (blacks) had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.
"The words 'people of the United States' and 'citizens' are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the government through their representatives. ... The question before us is, whether the class of persons (blacks) described in the ... (pleading) ... compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they (blacks) are not included, and were not intended to be included, under the word "citizens" in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they (blacks) were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them."
Abe Lincoln, both before and after the Dred Scott decision, rejected the premise "that the negro might justly and lawfully be reduced to slavery." For Lincoln, slavery -- regardless of the "legality" -- was "immoral. If the negro is a man, why then my ancient faith teaches me that 'all men are created equal;' and that there can be no moral right in connection with one man's making a slave of another. Slavery is founded in the selfishness of man's nature -- opposition to it, is (in) his love of justice. I object to it (slavery) because it assumes that there can be moral right in the enslaving of one man by another." -- Abe Lincoln, Peoria Speech. October 16, 1854
"Judge Douglas declares that if any community want slavery they have a (legal) right to have it. He can say that logically, if he says that there is no (moral) wrong in slavery; but if you admit that there is a (moral) wrong in it, he cannot logically say that anybody has a (legal) right to do (a moral) wrong." -- Abe Lincoln, Galesburg Debate, October 7, 1858
Now, 155 years after Dred Scott, we have Roe v. Wade. The Catholic bishops and those who agree with them, now stand in Lincoln's shoes. But instead arguing that it is "morally wrong" to enslave blacks, they teach that it is "morally wrong" to kill fetuses. They reject the notion, that because abortion has be made a "legal right," that is has now become "morally right." And they are treated by their fellow citizens with the same scorn as abolitionist were treated by many of the fellow citizens, and a significant portion of the press.
If you are reading this op ed, you are undoubtedly a "person," and a "human being." The fact that you are a "human being" is an incontrovertible medical and scientific truth. But are you a "person" in a "Constitutional sense?"
If you were a "person" "born or naturalized in the United States, and subject to the jurisdiction thereof," you are a "citizen of the United States and of the State wherein you reside." And if that's the case, no state shall "deprive" you of life "without due process of law. -- 14th Amendment, U. S. Constitution.
But if you are merely a fetus, under the Supreme Court decision of Roe v. Wade, while you may be a "person" or a "human being" in a "medical or scientific sense," you are not a person in a "Constitutional sense." As such, you have no Constitutional protections, and under Roe v Wade, your mother -- at her whim -- can kill you.
Under Roe v. Wade, you are not a "person" from the moment of conception. You are not a "person" from the point when you could live independently outside the womb. You are not a "person" even after 9 month in the womb -- even though you will be a naturally born healthy child within the next five minutes.
In Roe, the U. S. Supreme Court defined the word "person" for us to exclude "unborn [human] persons."
The Obama Administration now seeks to redefine "contraception" (preventing conception) to include "abortion" (killing a conceived fetus). And still not satisfied, the same Obama Administration is not redefining the term "religious employer" to exclude Catholic hospitals and Catholic Colleges, because the employ non-Catholics. And still not content, the Administration redefines killing fetuses as a "women's health issue -- as a "woman's right."
There is something intentionally intellectually deceptive in the word games and redefinitions of this administration. When a government redefines moral issues as "women's rights" and "women's health" issues, it obliterates "moral issue."
What then stops the government from ordering abortion of mentally impaired fetuses, or limiting the size of families in the name of "maternal health?" The power to define is the power to destroy.
Posted Online: Feb. 29, 2012, 6:10 am - Quad-Cities Online
by John Donald O'Shea
Copyright 2012, John Donald O'Shea
Wednesday, February 29, 2012
Friday, February 17, 2012
What Became of Freedom of Conscience?
William Roper: So, now you give the Devil the benefit of the law?
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I'd cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? ... Yes, I'd give the Devil benefit of law, for my own safety's sake! "A Man for All Seasons"
Notwithstanding all I said in Part I of this op ed, and notwithstanding Roe v. Wade, which holds that a woman has a constitutional right to choose to have an abortion, serious moral questions remain for anyone who feels abortion is a moral wrong.
(1) Because you may choose to have an abortion, must I perform that abortion?
(2) Must I assist you?
(3) Must I pay for your abortion?
(4) Must I provide you with insurance to cover the cost of your abortion?
(5) Must my business do "one of the above?" Must I do "one of the above" even if I happened to believe abortion to be murder, or tantamount to murder? Must I do so even though I believe abortion to be a grave sin? If you have "freedom to choose" abortion, why do you not recognize my "freedom to choose" to have nothing to do with your abortion? Why does your "freedom of choice" trump mine?
The bishops are fighting for their own "freedom of conscience." They are also fighting for all people — Catholics and non-Catholics — who believe as they do. Even those who administer colleges and hospitals which have employees!
When a woman has an abortion, an embryo, fetus or child is unquestionably killed. The only question is this: was the victim a human being? If life begins at conception, and if the victim is a human being, then abortion is murder or tantamount to murder.
And if committing, or assisting in an abortion, is morally wrong, I do not want to stand before my maker having assisted with an abortion — even if my assistance was only financial — there to be reminded that "whatever you did to the least of my brothers, that you did unto me."
That is what this battle is all about.
The Catholic Catechism contains this sublime teaching: "Deep within his conscience man discovers a law which he has not laid upon himself but which he must obey. Its voice, ever calling him to love and to do what is good and to avoid evil, sounds in his heart at the right moment. ... For man has in his heart a law inscribed by God. ... His conscience is man's most secret core and his sanctuary. There he is alone with God whose voice echoes in his depths." (Catechism of the Catholic Church, 1776)
Defending freedom of conscience is not just a Catholic issue. It is a fundamental human right to refuse to take part in morally evil actions: "To refuse to take part in committing an injustice is not only a moral duty; it is also a basic human right. Were this not so, the human person would be forced to perform an action intrinsically incompatible with human dignity, and in this way human freedom itself — the authentic meaning and purpose of which are found in its orientation to the true and the good — would be radically compromised.
"What is at stake therefore is an essential right, which, precisely as such, should be acknowledged and protected by civil law. In this sense, the opportunity to refuse to take part in the phases of consultation, preparation and execution of these acts against life should be guaranteed to physicians, health-care personnel, and directors of hospitals, clinics and convalescent facilities. Those who have recourse to conscientious objection must be protected not only from legal penalties but also from any negative effects on the legal, disciplinary, financial and professional plane." (Pope John Paul II, The Gospel of Life, no. 74)
One last thing must be noted. The USCCB position was not the position of every Catholic bishop. Some saw from the outset the USCCB position was fraught with peril. The dissenters felt that the USCCB operated under the naive assumption that placing unspecified control of the U.S. health care system in the hands of the federal government to get health care insurance for the uninsured outweighed the obvious risks. The USCCB chose to overlook the fact that the law would be implemented by an administration that did not shares it values as to the value of human life.
The bishops should have had my mother.
Posted Online: Feb. 16, 2012, 2:00 pm - Quad-Cities Online
by John Donald O'Shea
Copyright 2012, John Donald O'Shea
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I'd cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? ... Yes, I'd give the Devil benefit of law, for my own safety's sake! "A Man for All Seasons"
Notwithstanding all I said in Part I of this op ed, and notwithstanding Roe v. Wade, which holds that a woman has a constitutional right to choose to have an abortion, serious moral questions remain for anyone who feels abortion is a moral wrong.
(1) Because you may choose to have an abortion, must I perform that abortion?
(2) Must I assist you?
(3) Must I pay for your abortion?
(4) Must I provide you with insurance to cover the cost of your abortion?
(5) Must my business do "one of the above?" Must I do "one of the above" even if I happened to believe abortion to be murder, or tantamount to murder? Must I do so even though I believe abortion to be a grave sin? If you have "freedom to choose" abortion, why do you not recognize my "freedom to choose" to have nothing to do with your abortion? Why does your "freedom of choice" trump mine?
The bishops are fighting for their own "freedom of conscience." They are also fighting for all people — Catholics and non-Catholics — who believe as they do. Even those who administer colleges and hospitals which have employees!
When a woman has an abortion, an embryo, fetus or child is unquestionably killed. The only question is this: was the victim a human being? If life begins at conception, and if the victim is a human being, then abortion is murder or tantamount to murder.
And if committing, or assisting in an abortion, is morally wrong, I do not want to stand before my maker having assisted with an abortion — even if my assistance was only financial — there to be reminded that "whatever you did to the least of my brothers, that you did unto me."
That is what this battle is all about.
The Catholic Catechism contains this sublime teaching: "Deep within his conscience man discovers a law which he has not laid upon himself but which he must obey. Its voice, ever calling him to love and to do what is good and to avoid evil, sounds in his heart at the right moment. ... For man has in his heart a law inscribed by God. ... His conscience is man's most secret core and his sanctuary. There he is alone with God whose voice echoes in his depths." (Catechism of the Catholic Church, 1776)
Defending freedom of conscience is not just a Catholic issue. It is a fundamental human right to refuse to take part in morally evil actions: "To refuse to take part in committing an injustice is not only a moral duty; it is also a basic human right. Were this not so, the human person would be forced to perform an action intrinsically incompatible with human dignity, and in this way human freedom itself — the authentic meaning and purpose of which are found in its orientation to the true and the good — would be radically compromised.
"What is at stake therefore is an essential right, which, precisely as such, should be acknowledged and protected by civil law. In this sense, the opportunity to refuse to take part in the phases of consultation, preparation and execution of these acts against life should be guaranteed to physicians, health-care personnel, and directors of hospitals, clinics and convalescent facilities. Those who have recourse to conscientious objection must be protected not only from legal penalties but also from any negative effects on the legal, disciplinary, financial and professional plane." (Pope John Paul II, The Gospel of Life, no. 74)
One last thing must be noted. The USCCB position was not the position of every Catholic bishop. Some saw from the outset the USCCB position was fraught with peril. The dissenters felt that the USCCB operated under the naive assumption that placing unspecified control of the U.S. health care system in the hands of the federal government to get health care insurance for the uninsured outweighed the obvious risks. The USCCB chose to overlook the fact that the law would be implemented by an administration that did not shares it values as to the value of human life.
The bishops should have had my mother.
Posted Online: Feb. 16, 2012, 2:00 pm - Quad-Cities Online
by John Donald O'Shea
Copyright 2012, John Donald O'Shea
Thursday, February 16, 2012
Catholic Bishops Should Have Known My Mom
Two of my mother's most-used cautions were, "Birds of a feather, flock together," and "fools rush in where angels fear to tread." It was her way of warning me to avoid certain companions and certain situations.
To get Affordable Health Care, the Catholic Bishops ignored both of my mother's cautions (Part I, today). But on the issue, of Freedom of Conscience, they are right (Part II, tomorow).
Many Americans didn't vote for President Obama. Many looked at the Rev. Wright and saw a minister seething with hatred and calling for the damnation of the United States. They were not persuaded that Mr. Obama was unaware of the content of Rev. Wright's rants. Then too, there was Mr. Obama's relationship with the now "respectable" William Ayers, who co-founded the Weather Underground, a self-described revolutionary and terrorist involved in a campaign of bombing public buildings during the 1960s and 1970s. And his position on abortion was there for all to see.
But many Americans looked beyond those relationships and voted for Mr. Obama. Many were Catholics who knew, or should have known, of Mr. Obama's positions on contraception and abortion. That includes some members of the Catholic clergy.
In his presidential campaign literature, candidate Obama hid nothing. Mr. Obama stated that he had stood up for women's choice throughout his entire time in the Senate and that he understood that there would be those who disagreed with his positions. He further stated that he believed abortion is a moral choice which no woman makes lightly, but that each individual woman is capable of making that decision on their own.
At an event sponsored by Planned Parenthood in June of 2008, Senator Obama re-affirmed his pro-choice views.
"I have stood up for the freedom of choice in the United States Senate, and I stand by my votes against the confirmations of John Roberts and Samuel Alito. With one more vacancy on the court, we could be looking at a majority hostile to a woman's right to choose for the first time since Roe vs Wade, and that is what is at stake in this election."
President Obama spoke openly about abortion position. Nevertheless, President Obama captured 53 percent of the Catholic vote.
Once elected Mr. Obama embarked upon an all-out effort to enact Affordable Health Care legislation (Nation Health Insurance), with an "individual mandate" (a law which requires individuals to purchase health insurance and threatens punishment for those who don't). The United States Council of Catholic Bishops (USCCB) actively supported President Obama's Nation Health Care legislation. Indeed on June 2, 2009, in an Action Alert, the U.S. Conference of Catholic Bishops called upon Catholics to help reform health care.
"In our Catholic tradition, health care is a basic human right. Access to health care should not depend on where a person works, how much a family earns, or where a person lives. Instead, every person, created in the image and likeness of God, has a right to life and to those things necessary to sustain life, including affordable, quality health care. This teaching is rooted in the biblical call to heal the sick and to serve 'the least of these,' our concern for human life and dignity, and the principle of the common good. Unfortunately, tens of millions of Americans do not have health insurance. According to the Catholic bishops of the United States, the current health care system is in need of fundamental reform."
The bishops had a overriding goal. Christian charity had not provided every American with "affordable, quality health care." So, the bishops opted venture into the realm of politics and asked their flock to petition the government to create a system which would provide "affordable, quality health care" to those Americans without.
To get the legislation enacted, they arrayed themselves with groups whose views on abortion and contraception were utterly incompatible with the church's tenets on abortion. Then to make matters worse, they allowed the President and his friends in Congress to specify the details of what an affordable, quality health care should cover. Not satisfied with the efforts of individuals and charities to provide for the sick and the poor, the bishops asked the government to intervene, and relied upon their caveat in their call for reform "that the federal ban on funding abortions be continued."
Now the bishops see the details. Now they find they got what they bargained for — and sadly more!
The new Department of Health and Human Services interim final rules provide that the Health Resources and Services Administration "may establish exemptions" for "religious employers and health insurance coverage provided in connection with group health plans established or maintained by religious employers with respect to any requirement to cover contraceptive services under such guidelines."
The problem that the bishops have is with the definition of "religious employers." The term "religious employer" does not include "an organization (other than one that) primarily employs persons who share the religious tenets of the organization," or an "organization (other than one that) that serves primarily persons who share the religious tenets of the organization."
As such, the exemption is not broad enough to cover Catholic universities and Catholic hospitals.
Now, having entered the political thicket, the church now, seeks to avoid this peculiar form of individual mandate, requiring it to procure unwanted contraception, including the Morning After, or (abortion) Drug, insurance coverage, and complains that the government is ignoring the separation of church and state.
Having enlisted with the president and Congress in getting Affordable Health Care passed, the bishops now may have to look to that same President Obama, or perhaps the third branch of government, the courts, to extricate them from the consequences of their own doing because they now believe that a regulation passed pursuant to the legislation violates their freedom of conscience. Buyers' remorse! It now appears the Catholic bishops should have had my mom.
Posted Online: Feb. 15, 2012, 2:00 pm - Quad-Cities Online
by John Donald O'Shea
Copyright 2012, John Donald O'Shea
To get Affordable Health Care, the Catholic Bishops ignored both of my mother's cautions (Part I, today). But on the issue, of Freedom of Conscience, they are right (Part II, tomorow).
Many Americans didn't vote for President Obama. Many looked at the Rev. Wright and saw a minister seething with hatred and calling for the damnation of the United States. They were not persuaded that Mr. Obama was unaware of the content of Rev. Wright's rants. Then too, there was Mr. Obama's relationship with the now "respectable" William Ayers, who co-founded the Weather Underground, a self-described revolutionary and terrorist involved in a campaign of bombing public buildings during the 1960s and 1970s. And his position on abortion was there for all to see.
But many Americans looked beyond those relationships and voted for Mr. Obama. Many were Catholics who knew, or should have known, of Mr. Obama's positions on contraception and abortion. That includes some members of the Catholic clergy.
In his presidential campaign literature, candidate Obama hid nothing. Mr. Obama stated that he had stood up for women's choice throughout his entire time in the Senate and that he understood that there would be those who disagreed with his positions. He further stated that he believed abortion is a moral choice which no woman makes lightly, but that each individual woman is capable of making that decision on their own.
At an event sponsored by Planned Parenthood in June of 2008, Senator Obama re-affirmed his pro-choice views.
"I have stood up for the freedom of choice in the United States Senate, and I stand by my votes against the confirmations of John Roberts and Samuel Alito. With one more vacancy on the court, we could be looking at a majority hostile to a woman's right to choose for the first time since Roe vs Wade, and that is what is at stake in this election."
President Obama spoke openly about abortion position. Nevertheless, President Obama captured 53 percent of the Catholic vote.
Once elected Mr. Obama embarked upon an all-out effort to enact Affordable Health Care legislation (Nation Health Insurance), with an "individual mandate" (a law which requires individuals to purchase health insurance and threatens punishment for those who don't). The United States Council of Catholic Bishops (USCCB) actively supported President Obama's Nation Health Care legislation. Indeed on June 2, 2009, in an Action Alert, the U.S. Conference of Catholic Bishops called upon Catholics to help reform health care.
"In our Catholic tradition, health care is a basic human right. Access to health care should not depend on where a person works, how much a family earns, or where a person lives. Instead, every person, created in the image and likeness of God, has a right to life and to those things necessary to sustain life, including affordable, quality health care. This teaching is rooted in the biblical call to heal the sick and to serve 'the least of these,' our concern for human life and dignity, and the principle of the common good. Unfortunately, tens of millions of Americans do not have health insurance. According to the Catholic bishops of the United States, the current health care system is in need of fundamental reform."
The bishops had a overriding goal. Christian charity had not provided every American with "affordable, quality health care." So, the bishops opted venture into the realm of politics and asked their flock to petition the government to create a system which would provide "affordable, quality health care" to those Americans without.
To get the legislation enacted, they arrayed themselves with groups whose views on abortion and contraception were utterly incompatible with the church's tenets on abortion. Then to make matters worse, they allowed the President and his friends in Congress to specify the details of what an affordable, quality health care should cover. Not satisfied with the efforts of individuals and charities to provide for the sick and the poor, the bishops asked the government to intervene, and relied upon their caveat in their call for reform "that the federal ban on funding abortions be continued."
Now the bishops see the details. Now they find they got what they bargained for — and sadly more!
The new Department of Health and Human Services interim final rules provide that the Health Resources and Services Administration "may establish exemptions" for "religious employers and health insurance coverage provided in connection with group health plans established or maintained by religious employers with respect to any requirement to cover contraceptive services under such guidelines."
The problem that the bishops have is with the definition of "religious employers." The term "religious employer" does not include "an organization (other than one that) primarily employs persons who share the religious tenets of the organization," or an "organization (other than one that) that serves primarily persons who share the religious tenets of the organization."
As such, the exemption is not broad enough to cover Catholic universities and Catholic hospitals.
Now, having entered the political thicket, the church now, seeks to avoid this peculiar form of individual mandate, requiring it to procure unwanted contraception, including the Morning After, or (abortion) Drug, insurance coverage, and complains that the government is ignoring the separation of church and state.
Having enlisted with the president and Congress in getting Affordable Health Care passed, the bishops now may have to look to that same President Obama, or perhaps the third branch of government, the courts, to extricate them from the consequences of their own doing because they now believe that a regulation passed pursuant to the legislation violates their freedom of conscience. Buyers' remorse! It now appears the Catholic bishops should have had my mom.
Posted Online: Feb. 15, 2012, 2:00 pm - Quad-Cities Online
by John Donald O'Shea
Copyright 2012, John Donald O'Shea
Thursday, January 12, 2012
"One Person, One Vote" vs. "Big Money"
Since the great 1964 Supreme Court case of Reynolds v. Sims, 377 U. S. 553, the rule in American elections (except in the case of U. S. Senate elections) has been "One person, one vote." But is that rule fatally undermined by a second rule that allows individuals, corporations, unions and PACs to make virtually unlimited "campaign donations" to candidates seeking election and re-election?
It is difficult to imagine a more eloquent and incisive explanation of the importance "one person, one vote" to a democracy, than the court made in Reynolds.
Plaintiffs filed a complaint contending that the apportionment of the Alabama Legislature resulted in a denial of "equal protection" under the 14th Amendment to the Constitution.
The district court found that "Population-variance ratios of up to about 41-to-1 existed in the (Alabama) Senate, and up to about 16-to-1 in the House. Bullock County, with a population of only 13,462, and Henry County, with a population of only 15,286, each were allocated two seats in the Alabama House, whereas Mobile County, with a population of 314,301, was given only three seats, and Jefferson County, with 634,864 people, had only seven representatives."
The district court said plaintiffs were denied equal protection "by virtue of the debasement of their votes since the Legislature of the State of Alabama has failed and continues to fail to reapportion itself as required by law."
On appeal, the Supreme Court affirmed the decision stating: "Undeniably the Constitution of the United States protects the right of all qualified citizens to vote, in state as well as in federal elections.... It has been repeatedly recognized that all qualified voters have a constitutionally protected right to vote ... and to have their votes counted. ... The right to vote can neither be denied outright, ... nor destroyed by alteration of ballots, ... nor diluted by ballot-box stuffing. The right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government. ... And the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise."
Citing its previous opinion in Gray v. Sanders, the court said, "How then can one person be given twice or ten times the voting power of another person in a statewide election merely because he lives in a rural area or because he lives in the smallest rural county? Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote -- whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit.
"This is required by the Equal Protection Clause of the Fourteenth Amendment. The concept of 'we the people' under the Constitution visualizes no preferred class of voters but equality among those who meet the basic qualifications. The idea that every voter is equal to every other voter in his State, when he casts his ballot in favor of one of several competing candidates, underlies many of our decisions.
"Continuing, we stated that 'there is no indication in the Constitution that homesite or occupation affords a permissible basis for distinguishing between qualified voters within the State.' And, finally, we concluded: 'The conception of political equality from the Declaration of Independence, to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing -- one person, one vote.'"
The court added, "'We found further, in Wesberry, that 'our Constitution's plain objective' was that 'of making equal representation ... for equal numbers of people the fundamental goal ...' We concluded by stating: 'No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. Our Constitution leaves no room for classification of people in a way that unnecessarily abridges this right.'"
The Reynolds decision unequivocally states:
-- The right to vote granted by our Constitution "can mean only one thing — one person, one vote."
-- The right to vote freely for the candidate of one's choice is of the "essence of a democratic society."
-- Any restrictions on that right strike at the heart of representative government;
-- And the right of suffrage can be denied by a "debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise."
But there is a problem. Corporations, unions, PACs and very wealthy rich people can use their money to change the result of elections. Consider the effect of negative TV ads. A candidate atop the polls on Monday, can be at the bottom a couple days after the negative ads hit.
I may have one vote, just like George Soros, or Donald Trump. But their money -- like corporate, union and PAC money -- gives them power to influence voters to vote for the candidates they favor and against the candidates they oppose, that neither you nor I could ever hope to possess.
A friend of mine, a good attorney and lifelong Democrat, recently told me that the "system is broken, and cannot be fixed." I agree with him that the system is broken. But I still think it can be fixed -- but, only if something drastic is done.
Unless limits are placed on what individuals, unions, corporations and PACs can donate to candidates and incumbents anticipating re-election, all is lost.
The obvious solution is to set a "safe limit" (so small that no reasonable person would see it as an attempt to buy influence, and so small that no candidate or office holder would cast his vote in consideration of the donation).
Additionally, allow these "small, safe" donations only to come from individuals.
But if you feel compelled to allow unions, corporations, PACs and other entities to contribute, limit their contribution to the maximum one individual can give.
Individuals can join political parties, and vote for the candidates of that party. But they still must each cast their individual ballot. Freedom of association does not give them the right to "bundle" their vote.
The same must be true of political donations.
No person or entity can be allowed to bundle cash donations. Once bundling is allowed, bushel baskets of campaign donations drown out the voice of individual voters.
Unless something can be done to prevent candidates and office holders from taking donations in sums which appear to the public, the candidates and the officerholders to be large enough to give the appearance buying influence, I would have to agree that "things cannot be fixed."
Posted Online: Jan. 11, 2012, 3:31 pm - Quad-Cities Online
by John Donald O'Shea
Copyright 2012, John Donald O'Shea
It is difficult to imagine a more eloquent and incisive explanation of the importance "one person, one vote" to a democracy, than the court made in Reynolds.
Plaintiffs filed a complaint contending that the apportionment of the Alabama Legislature resulted in a denial of "equal protection" under the 14th Amendment to the Constitution.
The district court found that "Population-variance ratios of up to about 41-to-1 existed in the (Alabama) Senate, and up to about 16-to-1 in the House. Bullock County, with a population of only 13,462, and Henry County, with a population of only 15,286, each were allocated two seats in the Alabama House, whereas Mobile County, with a population of 314,301, was given only three seats, and Jefferson County, with 634,864 people, had only seven representatives."
The district court said plaintiffs were denied equal protection "by virtue of the debasement of their votes since the Legislature of the State of Alabama has failed and continues to fail to reapportion itself as required by law."
On appeal, the Supreme Court affirmed the decision stating: "Undeniably the Constitution of the United States protects the right of all qualified citizens to vote, in state as well as in federal elections.... It has been repeatedly recognized that all qualified voters have a constitutionally protected right to vote ... and to have their votes counted. ... The right to vote can neither be denied outright, ... nor destroyed by alteration of ballots, ... nor diluted by ballot-box stuffing. The right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government. ... And the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise."
Citing its previous opinion in Gray v. Sanders, the court said, "How then can one person be given twice or ten times the voting power of another person in a statewide election merely because he lives in a rural area or because he lives in the smallest rural county? Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote -- whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit.
"This is required by the Equal Protection Clause of the Fourteenth Amendment. The concept of 'we the people' under the Constitution visualizes no preferred class of voters but equality among those who meet the basic qualifications. The idea that every voter is equal to every other voter in his State, when he casts his ballot in favor of one of several competing candidates, underlies many of our decisions.
"Continuing, we stated that 'there is no indication in the Constitution that homesite or occupation affords a permissible basis for distinguishing between qualified voters within the State.' And, finally, we concluded: 'The conception of political equality from the Declaration of Independence, to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing -- one person, one vote.'"
The court added, "'We found further, in Wesberry, that 'our Constitution's plain objective' was that 'of making equal representation ... for equal numbers of people the fundamental goal ...' We concluded by stating: 'No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. Our Constitution leaves no room for classification of people in a way that unnecessarily abridges this right.'"
The Reynolds decision unequivocally states:
-- The right to vote granted by our Constitution "can mean only one thing — one person, one vote."
-- The right to vote freely for the candidate of one's choice is of the "essence of a democratic society."
-- Any restrictions on that right strike at the heart of representative government;
-- And the right of suffrage can be denied by a "debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise."
But there is a problem. Corporations, unions, PACs and very wealthy rich people can use their money to change the result of elections. Consider the effect of negative TV ads. A candidate atop the polls on Monday, can be at the bottom a couple days after the negative ads hit.
I may have one vote, just like George Soros, or Donald Trump. But their money -- like corporate, union and PAC money -- gives them power to influence voters to vote for the candidates they favor and against the candidates they oppose, that neither you nor I could ever hope to possess.
A friend of mine, a good attorney and lifelong Democrat, recently told me that the "system is broken, and cannot be fixed." I agree with him that the system is broken. But I still think it can be fixed -- but, only if something drastic is done.
Unless limits are placed on what individuals, unions, corporations and PACs can donate to candidates and incumbents anticipating re-election, all is lost.
The obvious solution is to set a "safe limit" (so small that no reasonable person would see it as an attempt to buy influence, and so small that no candidate or office holder would cast his vote in consideration of the donation).
Additionally, allow these "small, safe" donations only to come from individuals.
But if you feel compelled to allow unions, corporations, PACs and other entities to contribute, limit their contribution to the maximum one individual can give.
Individuals can join political parties, and vote for the candidates of that party. But they still must each cast their individual ballot. Freedom of association does not give them the right to "bundle" their vote.
The same must be true of political donations.
No person or entity can be allowed to bundle cash donations. Once bundling is allowed, bushel baskets of campaign donations drown out the voice of individual voters.
Unless something can be done to prevent candidates and office holders from taking donations in sums which appear to the public, the candidates and the officerholders to be large enough to give the appearance buying influence, I would have to agree that "things cannot be fixed."
Posted Online: Jan. 11, 2012, 3:31 pm - Quad-Cities Online
by John Donald O'Shea
Copyright 2012, John Donald O'Shea
So, When Exactly is "Lawful Plunder" Appropriate?
In some of my earlier op-eds, I have argued that a just society "redistributes income" only in amounts sufficient to help people who are incapable of providing for their most basic needs.
But I have also argued that "income redistribution" when misused can quickly degenerate into "plunder."
(Note: I am not unmindful of the danger of all income in the nation gravitating into the hands of just a few. I plan to address this issue in the near future. But I am limited in space.)
I have argued that there is nothing "fair" about people who pay no federal income taxes, while insisting that tax rates be increased only on their "rich neighbors" who already pay most of the taxes, so that the "rich" will pay their "fair share."
Today I would argue that there is nothing "fair" about two large corporations, Sears and the Chicago Mercantile Exchange, getting tax breaks amounting to $330 million per year, not available to all other Illinois corporations.
Gov. Pat Quinn justifies them saying, "You have to defend yourself. If Ohio is offering $400 million to Sears (to relocate) ... we will defend ourselves."
Translated, that means, that since Ohio is about to plunder Illinois, Illinois will allow Sears and the CME to plunder Illinois -- it will allow Sears and CME to escape the recent increase in the state income tax to 9.5 percent, while leaving the tax in place for all other corporations not threatening -- as yet -- to relocate.
If 9.5 percent is too high for the big boys to pay, and was a lousy idea in their cases, why don't the governor and legislators admit the increase in the state income tax was a lousy idea, and repeal it?
If there is something unseemly about the poor plundering the rich, there is something more unseemly about the rich plundering the poor.
In 1850, a French economist, Frederick Bastiat, wrote a pamphlet titled, "The Law."
In this age, when Congress gives a $500 million to Solyndra, and bails out Wall Street and GM with taxpayer dollars, does Bastiat look like a prophet?
"If every person has the right to defend -- even by force -- his person, his liberty, and his property, then it follows that a group of men have the right to organize and support a common force to protect these rights constantly.
"The law is the organization of the natural right of lawful defense. It is the substitution of a common force for individual forces. And this common force is to do only what the individual forces have a natural and lawful right to do: to protect persons, liberties, and properties; to maintain the right of each, and to cause justice to reign over us all.
"But there is ... another tendency that is common among people. When they can, they wish to live and prosper at the expense of others... Man may live and satisfy his wants by seizing and consuming the products of the labor of others.... Now since man is naturally inclined to avoid pain -- and since labor is pain in itself -- it follows that men will resort to plunder whenever plunder is easier than work.
"Men naturally rebel against the injustice of which they are victims. Thus, when plunder is organized by law for the profit of those who make the law, all the plundered classes try somehow to enter -- by peaceful or revolutionary means --into the making of laws. Either they may wish to stop lawful plunder, or they may wish to share in it.
"As soon as the plundered classes gain political power, they establish a system of reprisals against other classes. They do not abolish legal plunder .... They emulate their ... predecessors by participating in this legal plunder, even though it is against their own interests.
"In order to make plunder appear just and sacred to many consciences, it is only necessary for the law to decree and sanction it. Under these circumstances, then certainly every class will aspire to grasp the law, and logically so. The excluded classes will furiously demand their right to vote — and will overthrow society rather than not to obtain it.... They will say to you: since everyone else uses the law for his own profit, we also would like to use the law for our own profit.
"As long as it is admitted that the law may be diverted from its true purpose -- that it may violate property instead of protecting it -- then everyone will want to participate in making the law, either to protect himself against plunder or to use it for plunder.
"Sometimes the law defends plunder and participates in it. Thus the beneficiaries are spared the shame, danger, and scruple which their acts would otherwise involve. Sometimes the law places the whole apparatus of judges, police, prisons, and gendarmes at the service of the plunderers, and treats the victim -- when he defends himself -- as a criminal.
"But how is this legal plunder to be identified? Quite simply. See if the law takes from some persons what belongs to them, and gives it to other persons to whom it does not belong. See if the law benefits one citizen at the expense of another by doing what the citizen himself cannot do without committing a crime.
"Now, legal plunder can be committed in an infinite number of ways. Thus we have an infinite number of plans for organizing it: tariffs, protection, benefits, subsidies, encouragements, progressive taxation, public schools, guaranteed jobs, guaranteed profits, minimum wages, a right to relief, a right to the tools of labor, free credit, and so on, and so on. All these plans as a whole -- with their common aim of legal plunder -- constitute socialism."
Posted Online: Jan. 04, 2012, 2:09 pm - Quad-Cities Online
by John Donald O'Shea
Copyright 2012, John Donald O'Shea
But I have also argued that "income redistribution" when misused can quickly degenerate into "plunder."
(Note: I am not unmindful of the danger of all income in the nation gravitating into the hands of just a few. I plan to address this issue in the near future. But I am limited in space.)
I have argued that there is nothing "fair" about people who pay no federal income taxes, while insisting that tax rates be increased only on their "rich neighbors" who already pay most of the taxes, so that the "rich" will pay their "fair share."
Today I would argue that there is nothing "fair" about two large corporations, Sears and the Chicago Mercantile Exchange, getting tax breaks amounting to $330 million per year, not available to all other Illinois corporations.
Gov. Pat Quinn justifies them saying, "You have to defend yourself. If Ohio is offering $400 million to Sears (to relocate) ... we will defend ourselves."
Translated, that means, that since Ohio is about to plunder Illinois, Illinois will allow Sears and the CME to plunder Illinois -- it will allow Sears and CME to escape the recent increase in the state income tax to 9.5 percent, while leaving the tax in place for all other corporations not threatening -- as yet -- to relocate.
If 9.5 percent is too high for the big boys to pay, and was a lousy idea in their cases, why don't the governor and legislators admit the increase in the state income tax was a lousy idea, and repeal it?
If there is something unseemly about the poor plundering the rich, there is something more unseemly about the rich plundering the poor.
In 1850, a French economist, Frederick Bastiat, wrote a pamphlet titled, "The Law."
In this age, when Congress gives a $500 million to Solyndra, and bails out Wall Street and GM with taxpayer dollars, does Bastiat look like a prophet?
"If every person has the right to defend -- even by force -- his person, his liberty, and his property, then it follows that a group of men have the right to organize and support a common force to protect these rights constantly.
"The law is the organization of the natural right of lawful defense. It is the substitution of a common force for individual forces. And this common force is to do only what the individual forces have a natural and lawful right to do: to protect persons, liberties, and properties; to maintain the right of each, and to cause justice to reign over us all.
"But there is ... another tendency that is common among people. When they can, they wish to live and prosper at the expense of others... Man may live and satisfy his wants by seizing and consuming the products of the labor of others.... Now since man is naturally inclined to avoid pain -- and since labor is pain in itself -- it follows that men will resort to plunder whenever plunder is easier than work.
"Men naturally rebel against the injustice of which they are victims. Thus, when plunder is organized by law for the profit of those who make the law, all the plundered classes try somehow to enter -- by peaceful or revolutionary means --into the making of laws. Either they may wish to stop lawful plunder, or they may wish to share in it.
"As soon as the plundered classes gain political power, they establish a system of reprisals against other classes. They do not abolish legal plunder .... They emulate their ... predecessors by participating in this legal plunder, even though it is against their own interests.
"In order to make plunder appear just and sacred to many consciences, it is only necessary for the law to decree and sanction it. Under these circumstances, then certainly every class will aspire to grasp the law, and logically so. The excluded classes will furiously demand their right to vote — and will overthrow society rather than not to obtain it.... They will say to you: since everyone else uses the law for his own profit, we also would like to use the law for our own profit.
"As long as it is admitted that the law may be diverted from its true purpose -- that it may violate property instead of protecting it -- then everyone will want to participate in making the law, either to protect himself against plunder or to use it for plunder.
"Sometimes the law defends plunder and participates in it. Thus the beneficiaries are spared the shame, danger, and scruple which their acts would otherwise involve. Sometimes the law places the whole apparatus of judges, police, prisons, and gendarmes at the service of the plunderers, and treats the victim -- when he defends himself -- as a criminal.
"But how is this legal plunder to be identified? Quite simply. See if the law takes from some persons what belongs to them, and gives it to other persons to whom it does not belong. See if the law benefits one citizen at the expense of another by doing what the citizen himself cannot do without committing a crime.
"Now, legal plunder can be committed in an infinite number of ways. Thus we have an infinite number of plans for organizing it: tariffs, protection, benefits, subsidies, encouragements, progressive taxation, public schools, guaranteed jobs, guaranteed profits, minimum wages, a right to relief, a right to the tools of labor, free credit, and so on, and so on. All these plans as a whole -- with their common aim of legal plunder -- constitute socialism."
Posted Online: Jan. 04, 2012, 2:09 pm - Quad-Cities Online
by John Donald O'Shea
Copyright 2012, John Donald O'Shea
Thursday, December 15, 2011
Can Congress Tax Americans on the Right to Breath?
(Editor's note: This is the second of two columns on the constitutionality of Obamacare.)
Last Thursday, I opined that the U.S. Supreme Court will uphold The Patient Protection and Affordable Care Act (Obamacare) under Congress' power to provide for the general welfare.
The second issue, is this: Did Congress under Article I, Section 8 have the power to fund Obamacare by imposing an individual mandate? That is, does Congress have power to require every American (or their employer) either to purchase health Insurance from a health insurance carrier or to pay a fine?
There is, of course, the possibility that the court will uphold the legislation under the commerce clause. But is an American reading a book in his own living room engaged in interstate commerce? Can it fairly be said that because 20 or 50 years from now, he may be unable to pay for hospital care, and that the government may be required to pay those bills, that he is presently engaged in interstate commerce? Or that his present conduct affects interstate commerce?
Does the power to regulate interstate commerce give Congress power to require individual Americans to engage in commerce -- that is, to buy insurance? I don't think so.
It is one thing to regulate the conduct of someone engaged in or intending to become engaged in the near future. It is a very different thing to tell someone that he must get engaged in interstate commerce.
The commerce clause argument in favor of the individual mandate, however, is also premised on Congress' additional power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers."
It will be argued that the individual mandate has been determined by Congress to be "necessary" or "proper" to support the health care scheme. When an America has health insurance, that limits the risk that the government, somewhere in the future, will be required to pay that American's health care bills, or, at least, substantial portions thereof.
It can be argued that if an American refuses to buy such coverage, the penalty will create a fund which the government can use to pay his uncovered bills. But if that were the case, then the "penalty" is very much like a "tax," (I am using the word "tax" in its everyday nontechnical sense.) To put it another way, forcing someone to pay money to the government to provide a fund to help the government deal with health care costs looks to me to be more in the nature of an exercise of the "taxing" power," than a "regulation of commerce."
Therefore, it seems to me that if the individual mandate is to be upheld, the justification will again have to be found in the taxing power. Congress clearly has ... "power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States." Note, there is no mention that Congress has power to collect penalties to provide for the general welfare.
So, is the individual mandate a tax? A duty? An impost? An excise? As used in Article I, Section 8, the word "tax" is used in a technical sense. In common parlance, we refer to duties, imposts and excise as "taxes." But in Article I, Section 8, a "tax" is something other than a duty, impost or excise.
Section 8 clearly provides that "Congress shall have the power to lay and collect taxes ... to ... provide for ... the general welfare." But as requiring someone to buy insurance is not a tax on "income," the 16th Amendment, which allows Congress "to lay and collect taxes on incomes, from whatever source derived, without apportionment among the states, and without regard to any census or enumeration," clearly has no application.
And if it is a "tax," it is clearly unconstitutional because Article 8 provides, "No capitation, or other direct tax (as opposed to a 'requisition') shall be laid unless in proportion to the census or enumeration herein before directed to be taken." And whatever else can be said about the individual mandate, no one has claimed that it was created "in proportion to the census."
Additionally, it is obvious that the individual mandate is not a duty or and impost. Duties and imposts are levies on goods imported into the U.S.
So, if it isn't a tax ( in the constitutional sense), a duty or an impost, then to be authorized by the Constitution, it would have to be an excise. Is it?
An excise is a tax on doing something. It can be a tax on the production, use, sale or transfer of goods. Or it can be a tax on doing business, on the right to employ another, or on earning income. It can be a tax on passing one's property to an heir or legatee at death. So, if it is an excise, what "doing something" is being taxed? Breathing? Living? Being a citizen? Will the court for the first time say that Congress can lay and excise on the privilege of "being an American?" Or can Congress levy an excise on the privilege of "doing nothing" (not buying insurance)?
And of course, while Congress has been given "power to lay and collect taxes, duties, imposts and excises," neither that section nor any other empowers Congress to require Americans to buy goods or services from anyone.
The court will find that Congress has power to provide for national health care. It seems to me that Alexander Hamilton's argument will again prevail, just as it prevailed when the U. S. Supreme Court upheld Social Security in the 1930s.
So, I think the constitutionality of the act will turn on my second question: Can Congress lay an excise on the right of Americans to breathe, live, or to be Americans?
The court never has said Congress has that power up until now. I am guessing it won't do so now. If it allows the funding penalty to stand, it will have to say that an excise can be a tax on"doing something, and even on doing nothing.
If Congress has such power, bye, bye liberty. It could require every American to purchase insurance coverage from the day he is born until the day he dies. And it could then also tax eating, sleeping, breathing .....
But given the fact that our forefathers came to America in search of liberty, it is really hard to believe that they gave Congress power to tax their right to breathe or be Americans.
Posted Online: Dec. 14, 2011, 2:30 pm - Quad-Cities Online
by John Donald O'Shea
Copyright 2011, John Donald O'Shea
Last Thursday, I opined that the U.S. Supreme Court will uphold The Patient Protection and Affordable Care Act (Obamacare) under Congress' power to provide for the general welfare.
The second issue, is this: Did Congress under Article I, Section 8 have the power to fund Obamacare by imposing an individual mandate? That is, does Congress have power to require every American (or their employer) either to purchase health Insurance from a health insurance carrier or to pay a fine?
There is, of course, the possibility that the court will uphold the legislation under the commerce clause. But is an American reading a book in his own living room engaged in interstate commerce? Can it fairly be said that because 20 or 50 years from now, he may be unable to pay for hospital care, and that the government may be required to pay those bills, that he is presently engaged in interstate commerce? Or that his present conduct affects interstate commerce?
Does the power to regulate interstate commerce give Congress power to require individual Americans to engage in commerce -- that is, to buy insurance? I don't think so.
It is one thing to regulate the conduct of someone engaged in or intending to become engaged in the near future. It is a very different thing to tell someone that he must get engaged in interstate commerce.
The commerce clause argument in favor of the individual mandate, however, is also premised on Congress' additional power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers."
It will be argued that the individual mandate has been determined by Congress to be "necessary" or "proper" to support the health care scheme. When an America has health insurance, that limits the risk that the government, somewhere in the future, will be required to pay that American's health care bills, or, at least, substantial portions thereof.
It can be argued that if an American refuses to buy such coverage, the penalty will create a fund which the government can use to pay his uncovered bills. But if that were the case, then the "penalty" is very much like a "tax," (I am using the word "tax" in its everyday nontechnical sense.) To put it another way, forcing someone to pay money to the government to provide a fund to help the government deal with health care costs looks to me to be more in the nature of an exercise of the "taxing" power," than a "regulation of commerce."
Therefore, it seems to me that if the individual mandate is to be upheld, the justification will again have to be found in the taxing power. Congress clearly has ... "power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States." Note, there is no mention that Congress has power to collect penalties to provide for the general welfare.
So, is the individual mandate a tax? A duty? An impost? An excise? As used in Article I, Section 8, the word "tax" is used in a technical sense. In common parlance, we refer to duties, imposts and excise as "taxes." But in Article I, Section 8, a "tax" is something other than a duty, impost or excise.
Section 8 clearly provides that "Congress shall have the power to lay and collect taxes ... to ... provide for ... the general welfare." But as requiring someone to buy insurance is not a tax on "income," the 16th Amendment, which allows Congress "to lay and collect taxes on incomes, from whatever source derived, without apportionment among the states, and without regard to any census or enumeration," clearly has no application.
And if it is a "tax," it is clearly unconstitutional because Article 8 provides, "No capitation, or other direct tax (as opposed to a 'requisition') shall be laid unless in proportion to the census or enumeration herein before directed to be taken." And whatever else can be said about the individual mandate, no one has claimed that it was created "in proportion to the census."
Additionally, it is obvious that the individual mandate is not a duty or and impost. Duties and imposts are levies on goods imported into the U.S.
So, if it isn't a tax ( in the constitutional sense), a duty or an impost, then to be authorized by the Constitution, it would have to be an excise. Is it?
An excise is a tax on doing something. It can be a tax on the production, use, sale or transfer of goods. Or it can be a tax on doing business, on the right to employ another, or on earning income. It can be a tax on passing one's property to an heir or legatee at death. So, if it is an excise, what "doing something" is being taxed? Breathing? Living? Being a citizen? Will the court for the first time say that Congress can lay and excise on the privilege of "being an American?" Or can Congress levy an excise on the privilege of "doing nothing" (not buying insurance)?
And of course, while Congress has been given "power to lay and collect taxes, duties, imposts and excises," neither that section nor any other empowers Congress to require Americans to buy goods or services from anyone.
The court will find that Congress has power to provide for national health care. It seems to me that Alexander Hamilton's argument will again prevail, just as it prevailed when the U. S. Supreme Court upheld Social Security in the 1930s.
So, I think the constitutionality of the act will turn on my second question: Can Congress lay an excise on the right of Americans to breathe, live, or to be Americans?
The court never has said Congress has that power up until now. I am guessing it won't do so now. If it allows the funding penalty to stand, it will have to say that an excise can be a tax on"doing something, and even on doing nothing.
If Congress has such power, bye, bye liberty. It could require every American to purchase insurance coverage from the day he is born until the day he dies. And it could then also tax eating, sleeping, breathing .....
But given the fact that our forefathers came to America in search of liberty, it is really hard to believe that they gave Congress power to tax their right to breathe or be Americans.
Posted Online: Dec. 14, 2011, 2:30 pm - Quad-Cities Online
by John Donald O'Shea
Copyright 2011, John Donald O'Shea
Thursday, December 8, 2011
Will the Supreme Court Uphold Obamacare? Part 1
The U.S. Supreme Court has agreed to hear arguments on whether The Patient Protection and Affordable Care Act ("Obamacare") is constitutional.
The high court has stated that it will rule on the issues by July 4, 2012. As I see it, the court will consider two principal issues:
-- Could Congress rationally determine that it had power to create a national health care system (and that it needed to do so), and
-- Could Congress fund the system, by requiring Americans (or their employers) either to buy their own health insurance, or to pay a penalty.
Whether the legislation will be declared "constitutional" or "unconstitutional," will probably be based on the court's reading of Article 8 [1] of the U. S. Constitution, which provides:
"The Congress shall have the power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States;"
The first issue is this: Could Congress fairly conclude that it might pass Obamacare (and needed to do so) in furtherance of the general welfare?
Arguments on that issue were first made almost immediately after our constitution was adopted. Those who argue that the law should be upheld will in all likelihood cite the 1791 Report on Manufactures to the House of Representatives by Alexander Hamilton, the first secretary of the Treasury.
"The National Legislature has express authority 'to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and general welfare,' with no other qualifications than (a) that 'all duties, imposts and excises, shall be uniform throughout the United States; and (b) that no capitation or other direct tax shall be laid, unless in proportion to numbers, ascertained by a census or enumeration, taken on the principles prescribed in the constitution, and (c) that no tax or duty shall be laid on articles exported from any State.'
"These three qualifications excepted, the power to raise money is plenary and indefinite, and the objects to which it may be appropriated, are no less comprehensive than the payment of the public debts, and the providing for the common defence and general welfare. The terms 'general welfare' were doubtless intended to signify more than was expressed or imported in those which preceded; otherwise, numerous exigencies incident to the affairs of a nation would have been left without a provision The phrase is as comprehensive as any that could have been used; because it was not fit that the constitutional authority of the Union to appropriate its revenues should have been restricted within narrower limits than the "general welfare;" and because this necessarily embraces a vast variety of particulars, which are susceptible neither of specification nor of definition.
"It is, therefore, of necessity, left to the discretion of the National Legislature to pronounce upon the objects which concern the general welfare, and for which, under that description, an appropriation of money is requisite and proper. ... The only qualification of the generality of the phrase in question, which seems to be admissible, is this: That the object, to which an appropriation of money is to be made, be general, and not local; its operation extending, in fact, or by possibility, throughout the Union, and not being confined to a particular spot.
"No objection ought to arise to this construction, from a supposition that it would imply a power to do whatever else should appear to Congress conducive to the general welfare. A power to appropriate money with this latitude, which is granted, too, in express terms, would not carry a power to do any other thing not authorized in the constitution, either expressly or by fair implication."
Those, on the other hand, who believe the law to be unconstitutional will probably reference the writings of John C. Calhoun, especially his South Carolina Exposition and Protest of 1828. (Note, however, that Calhoun's position squares rather nicely with the last paragraph of Hamilton's report. But Hamilton's last paragraph has been largely forgotten or ignored by Congress and the courts.) Calhoun wrote:
"It is a bold and an unauthorized assumption, that Congress has the power to pronounce what objects belong, and what do not belong to the general welfare; and to appropriate money, at its discretion, to such as it may deem to belong to it.
"No such power is delegated to it -- nor is any such necessary and proper to carry into execution those which are delegated.
"This (the Constitution) pronounced to what limits the general welfare extended, and beyond which it did not extend.
"To prove, then, that any particular object belongs to the general welfare of the States of the Union, it is necessary to show that it is included in some one of the delegated powers, or is necessary and proper to carry some one of them into effect -- before a tax can be laid or money appropriated to effect it.
"For Congress, then, to undertake to pronounce what does, or what does not belong to the general welfare -- without regard to the extent of the delegated powers -- is to usurp the highest authority -- one belonging exclusively to the people of the several States in their sovereign capacity. "
I think Congress could fairly find that health care is a "nationwide" issue, and not merely a "local issue," and that it therefore could enact health care legislation in an effort to provide for the "general welfare." In the 1930s, Congress determined that it could provide for old-age pensions (Social Security) in furtherance of the "general welfare." The Supreme Court deferred to that Congressional determination and upheld the Social Security Act. I think it will likewise determine that Congress can enact national health care legislation in furtherance of the "general welfare."
Posted Online: Dec. 07, 2011, 2:27 pm - Quad-Cities Online
by John Donald O'Shea
Copyright 2011, John Donald O'Shea
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