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You Can't Have It Both Ways With Original Intent

Don't pretend that your preferences are automatically Constitutional.

by James Leroy Wilson
March 25, 2010

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You Can't Have It Both Ways With Original Intent

The individual mandate to purchase health "insurance" – the cornerstone of Obamacare – is a new and perverse power that violates the Constitution in at least three areas:

1.   It is an "unfunded mandate" which imposes fines through the tax code. This is a tax not on what you purchase or what you earn, but on your very existence as a person. This violates the Constitution's prohibition against direct taxes.
2.   It interprets your failure to purchase something as "commerce" that can be regulated by the Commerce Clause. In the same vein, Congress could interpret your failure to purchase a GM or Chrysler car as "commerce" and force you to buy one. With this logic, Congress could theoretically force you to purchase pornography if it's "good for the economy."
3.   Surely your body belongs to you, not the government; compelling individuals to participate in a healthcare system when they might prefer alternative forms of healthcare, is a violation of our Ninth Amendment rights.
It is safe to say the Framers of the Constitution never intended the federal government to be used to compel individuals to purchase health insurance.
On the other hand, why should we bother with the "original intent" of the slave-owning, dead white males who drafted the Constitution? Didn't they deny women the right to vote? Didn't they consider an African-American slave "three-fifths of a person?"

These are good points. It is more than fair to bring the "original intent" of the Framers into question.
But let's not be hypocritical about it. After all,

The "original intent" of these elitist, slave-owning Dead White Males was to create a strong federal government that didn't previously exist.
How is it that most of the same people who rail against "original intent" and accuse the Founders of being elitist (which they undoubtedly were) usually take their conclusion in the opposite direction?
  • They want more power to the President than the Constitution grants, even though if we went against the intention of the elitist Framers, there would be no President!
  • They want more power to Congress than the Constitution grants, even though if we went against the intention of the elitist Framers, Congress (as we know it) wouldn't exist!
  • They want the Supreme Court to diminish local power and expand federal power, even though if we went against the intention of the elitist Framers, there would be no federal courts, no federal cases, and very little federal power!
  • They want even more restraints on state government than the Constitution demands, but if we went against the intention of the elitist Framers, there would hardly be any restraints on state government power at all!
If the Framers were so evil and inept, we shouldn't build upon the central government structure they created. If anything, the proper response is to say that the Constitution and the federal government it established has no authority.

This is especially true because the Constitutional Convention was clearly illegal. The "original intent" of the Convention was to merely revise the Articles of Confederation, not replace the Articles with something brand new.

Perhaps the Articles of Confederation was also drawn up by evil, elitist men. And perhaps the Declaration of Independence was drawn up by evil, elitist men – in opposition to men who were also evil and elitist. Perhaps every government before then - through conquest or coup – was created by evil men.

This is a record of usurpation: one group of evil men overthrowing (violently or peacefully) the rule of other evil men. But in each case, there was at least a new Established Order, clearly seen by everybody. The Constitution created a new, Established Order. As did the Articles and Declaration before it. As did the colonial charters before them. And the "Glorious Revolution" in England before it, and on and on.

But where is the new Established Order? Yes, the Constitution has been amended 27 times since its enactment, but nowhere in those amendments do we see the establishment of a central bank (the Federal Reserve), wars declared by Presidents instead of Congress (Korea. Vietnam, Iraq, Afghanistan etc.), federal welfare systems (Social Security, Medicare, unemployment benefits, etc.), bodies to regulate commercial activity within states (OSHA, minimum wage, etc.), or federal cops that police our choices and own bodies (FDA, War on Drugs, etc.).
Let alone the power to force individuals to purchase something from a private entity, as Obamacare forces individuals to purchase health insurance.

There's nothing in the language of the Constitution's amendments, nor in the original text or intent of the Constitution, to establish any of these things.

Yet they exist, and persist.

Why is that?

Because the "original intent" of the Framers doesn't matter anymore. They were elitists; we are a democracy.

But if that is true and we are indeed a democracy, the only legally and morally legitimate remedy is to overthrow the Constitution. The instruments of power established by the Constitution: the Presidency, Congress, federal courts, etc. should be redefined by the call for a new Constitutional Convention, overthrown by revolution, or put aside by state nullification.

Yet the new "Established Order" came to power without even the courtesy of amending or overthrowing the previous Established Order of the Constitution. Rather, it just declared itself Constitutional and claimed that those who disagree were "kooks" and whatnot.

But you can't have it both ways, condemning those who established the Constitution for being elitist slave-owning dead white males, and then use the very same instruments of power these elitist dead white males illegally created, in order to expand the power of the federal government far beyond anything they imagined, in order to achieve social ends you deem convenient.

Condemn the Constitution and its framers all you want. But if your ideology depends on using levers of power that a) violate the limits of the Constitution, and b) would never have existed without the Constitution, then I suggest you re-check your premises. Call for a Constitutional Convention to expand federal power, or call for the overthrow and nullification of the Constitution as it now exists.
But to use the levers of power created by the Constitution, and then ignore the limits the Constitution places on those powers, is to support a government unrestrained by law, which is tyranny.

If you believe it is "social justice" to force other people to purchase an insurance plan they don't want, then work toward amending the Constitution to give the federal government that power. Just don't pretend that the current law that mandates it is legitimate or Constitutional.

Comments (1)

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Windy from Richmond, VA writes:
March 25, 2010
I like you post and agree with your premise, the only thing I would like to add is that the Framers were not elitist-- quite the opposite and the structure of the government reflects this. Everyone like to run around and say but they owned slaves, and women didn't have the right to vote so they must have all been male pig-- but they established government that is due time would allow for all people to be free as social norms changed. We mix together social structure with governmental structure. Our structure of government understood that man is imperfect and must be limited in power or else tyranny will prevail. Our Founders understood Humanity (the good and ills of man) and created the greatest piece of humanity when they wrote the Declaration and when they crafted the Constitution. Yes, some of them owned slaves, and they wrote numerous articles and letters about their conflict. It is short sided to call them elitists, if so they would have appointed a King instead of crafting something that would be governed by the people. If they were elitists, they would not have drafted limited government but given themselves power and wealth in our Countries creation. Our American Revolution was the only revolution that took power from one person and actually transferred it to the people. Our government is the only document that does not grant rights but believes they are grated by our creator and must be protected from fellow men.

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