”Senate Majority Whip Dick Durbin (D-Ill.) will chair a hearing on the constitutionality of the national health care law on Wednesday morning, two days after a Florida judge struck down the entire overhaul.”
Well then, Senator Durbin, let us review some facts.
When determining what is and what is not constitutional, the most fundamental rule of constitutional law is to enforce the prevailing documented intentions and beliefs under which our Constitution (each article, section, clause and amendment) was adopted. The rule is stated as follows:
***“The fundamental principle of constitutional construction is that effect must be given to the intent of the framers of the organic law and of the people adopting it. This is the polestar in the construction of constitutions, all other principles of construction are only rules or guides to aid in the determination of the intention of the constitution’s framers.”***— Vol.16 Am. Jur. Constitutional law (1992 edition), pages 418-19, Par. 92. Intent of framers and adopters as controlling
The disputed part of our Constitution with respect to Obamacare is Article 1, Section 8, Clause 3, which is alleged to be a power authorizing Obamacare and reads as follows:
The Congress shall have Power … ***To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes ***
In conformity with another rule of constitutional law pertaining to the “Meaning of Language” we find: Words or terms used in a constitution, being dependent on ratification by the people voting upon it, must be understood in the sense most obvious to the common understanding at the time of its adoption. And this brings us to our first question concerning Obamacare and Congress‘ power. What is the meaning of “commerce” as our founding fathers used the word when framing and ratifying our Constitution?
In U.S. vs. Lopez, our Supreme Court took the time to methodically document the meaning of “commerce” as the word was used during the time period our Constitution was being framed and ratified. The Court summarized its meaning as follows: ***“Agriculture and manufacturing involve the production of goods; commerce encompasses traffic in such articles.” ***
Indeed, “commerce“ as used by our founding fathers had nothing to do with the consumption of products available, the use of products in existence, the manufacturing or sale of consumer articles, but only referenced the actual trade or “traffic” of products which had been produced for sale and consumption!
Now that we understand the meaning of “commerce” as used within our Constitution, there remains the question as to the intentions for which our founding fathers granted the contended power to Congress. And why is it of importance to answer this question? That is summarized by the noteworthy Chancellor James Kent, in his Commentaries on American Law (1858):
“The constitution is the act of the people speaking in their original character, and there can he no doubt on the point with us, that every act of the legislative power, contrary to the true intent and meaning of the constitution, is absolutely null and void.”
Well then, let us discover the intentions for which the power in question was granted.
A clue to those intentions is quickly pointed out in Art.1, Sec. 9 of our Constitution.
***“No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.” ***
From the written text of our original Constitution, we find a clear intention expressed regarding the power to “regulate commerce”, the intention being, to prohibit preferences being made by Regulations of Commerce or Revenue to the Ports of one State over those of another, and to prevent Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.”
The founder’s intentions for granting such power are also explicitly stated in Federalist Paper No. 42 by Madison:
***“A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquility.” ***
As documented in Federalist No. 42, the power to regulate commerce among the states was expressly intended to prevent one state from taxing another state’s goods as they passed through its borders. Additionally, the power to regulate commerce granted to Congress was to also allow Congress to have oversight in another but specifically identified area__ a State‘s inspection laws. And this is also found in the text of the Constitution:
***“No state shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing it’s inspection laws: and the net produce of all duties and imposts, laid by any state on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the Congress.” ***
If there is any one thing which becomes crystal clear after reviewing the historical record to determine the intentions for which our Constitution was adopted, that would be the sheer insanity for Obama, Dick Durbin, Steny Hoyer, Harry Reid, Chuck Schumer, Nancy Pelosy, Barney Frank, Debbie Wasserman, or any member of Congress to suggest the State Delegates to the Convention of 1787 which framed our Constitution, or the State Legislatures when ratifying the Constitution intended by the power in question, to be authorizing a power to Congress to enter the States to regulate the American People’s personal healthcare needs and the choices they make with regard to their personal health care needs. As a matter or fact, our founding fathers specifically adopted both the 9th and 10th amendments to our Constitution to keep the federal government‘s nose out of the internal affairs of the States and to give force and effect to what was clearly stated in Federalist No. 45:
***“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. ***
The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
And finally, let us not forget that is was less than twenty years after the ratification of our Constitution that our very own Supreme Court confirmed the limited powers granted to our federal government by the States:
***"The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act. ***
Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.
***If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable. ***
Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature repugnant to the constitution is void." ____ MARBURY v. MADISON, 5 U.S. 137 (1803)
Bottom line is, we had one tea party in America to deal with despots and tyrants. Let us not instigating a second.
***Health care by consent of the governed (Article 5) our amendment process — tyranny by a PROGRESSIVE majority vote in Congress! ***