Editore"s Note
Tilting at Windmills

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August 20, 2009

SHE'S NOT A CONSTITUTIONAL SCHOLAR, EITHER.... Rep. Michele Bachmann (R-Minn.) has come to the conclusion that health care reform, in addition to being a bad idea, is literally unconstitutional. She made the case on Monday night to Fox News' Sean Hannity.

"[I]t is not within our power as members of Congress, it's not within the enumerated powers of the Constitution for us to design and create a national takeover of health care. Nor is it within our ability to be able to delegate that responsibility to the executive."

It's hard to know where to start with this. My first thought was that reform doesn't represent "a national takeover of health care." My second was that I'll look forward to Bachmann's lawsuit challenging the constitutionality of Medicare. I suspect, however, that such litigation is unlikely.

On a more substantive note, the Constitution empowers Congress to "lay and collect taxes, duties, imposts and excises," to "provide for" the "general welfare" of the United States, and to "make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other Powers vested by this Constitution in the government of the United States, or in any department or officer thereof."

As Matthew DeLong noted, "I'm no constitutional scholar, but enacting laws to reform the health care system to help provide insurance to the roughly 45 million Americans currently going without sounds like it might be covered under a reasonable reading of the 'general welfare' clause."

Ian Millhiser summarized the larger context nicely: "It's important to note just how radical Bachmann's theory of the Constitution is. If Congress does not have the power to create a modest public option which competes with private health plans in the marketplace, then it certainly does not have the authority to create Medicare. Similarly, Congress' power to spend money to benefit the general welfare is the basis for Social Security, federal education funding, Medicaid, and veterans benefits such as the VA health system and the GI Bill. All of these programs would cease to exist in Michele Bachmann's America."

Steve Benen 10:00 AM Permalink | Trackbacks | Comments (53)

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"It's important to note just how radical Bachmann's theory of the Constitution is. If Congress does not have the power to create a modest public option which competes with private health plans in the marketplace, then it certainly does not have the authority to create Medicare. Similarly, Congress' power to spend money to benefit the general welfare is the basis for Social Security, federal education funding, Medicaid, and veterans benefits such as the VA health system and the GI Bill. All of these programs would cease to exist in Michele Bachmann's America."

Actually, this sounds very much like what the radical right has been frothing about for some time now and eliminating or drastically weakening these is in line with their goals.

Posted by: Missouri Mule on August 20, 2009 at 10:05 AM | PERMALINK

That's just the beginning of what would cease to exist in Michelle Bachmann's America.

Posted by: Rolla on August 20, 2009 at 10:06 AM | PERMALINK

Article I, Section 8, Clause 3:
“ [The Congress shall have power] To regulate commerce with foreign nations, and among the several states, and with the Indian tribes[.]

Posted by: Thaumaturgist on August 20, 2009 at 10:07 AM | PERMALINK

. . . it's not within the enumerated powers of the Constitution for us to design and create a national takeover of health care. -- Rep. Michele Bachmann (R-La La Land)

No one is talking about "nationalizing" health care, of course. But after talking yesterday with doctor about how much frustration she experiences every day in her family practice, and how much more pleasant it was working on salary at a university-affiliated hospital, I'm beginning to think that a national health care system may be superior to a single payer system.

Just a view from the far left.


Posted by: SteveT on August 20, 2009 at 10:11 AM | PERMALINK

The people in Bachmann's district who voted for her re-election should be embarrassed - again.

Posted by: withay on August 20, 2009 at 10:11 AM | PERMALINK

the real silver lining of the failure of health care reform will be that gradually more and more folks will begin to get a glimmer that we are no longer capable of governing ourselves...

but, of course, that is also the most terrifying lesson, and the most tragic.

Posted by: neill on August 20, 2009 at 10:13 AM | PERMALINK

A distinction that may be important: it is "provide for the common defense" and "promote the general welfare." "Provide for" means raising armies and navies. "Promote" is less explicit, leaving more room for interpretation and argumentation over its meaning.

These arguments go back to the early days of the republic.

Nevertheless, Bachmann should be challenged to eliminate Medicare and let the free market decide whether granny is cost-effective to care for.

Posted by: Ed W on August 20, 2009 at 10:20 AM | PERMALINK

The irony is that Bachmann's district lies as far as I can tell in territory the US acquired by the Louisiana Purchase. There is no express grant of power to the federal government to purchase new territory. If her theory of the federal government's constitutional powers is correct, then the Louisiana Purchase was unconstitutional, and she is not a legitimate member of Congress.

Posted by: rea on August 20, 2009 at 10:21 AM | PERMALINK

I live in the state of MN although not in her legislative district. I can't help wondering what planet she and her constituents live on as they re-elected her in spite of her wingnut ideas. She is an embarrassment to the whole state.

Posted by: Joan A on August 20, 2009 at 10:21 AM | PERMALINK

No more healthcare for Congress. They have to get insurance in their own states, just like their constitutes.

They are holier than thou and without them having to experience the same pain as the rest of us, they don't have a clue and they couldn't care less about us. Six months in the kind of healthcare we have (or don't have) and we would have fully nationalized health insurance with about 70% of their votes.

Perhaps that gooper congresscritter was right: Congress deserves what it's hearing at the town hall meetings - but for the wrong reasons.

This whole debate is a long range plan by the GOP. Bachmann's vision, according to Millhiser, is what they want. If we don't fix Medicare and Medicaid, and insure everyone, funding for what exists now will eventually be eaten up, and then they can drown it in old Grover's bathtub. I truly believe that this is their plan. When they get back in power (which, unfortunately, is pretty much a given, evil, it seems, does not die), they can scream that there is no money for Medicare/Medicaid/Social Security and then pass legislation to do away with it all. Consequences be damned.

This follows the C Street philosophy. The have's get it all and then graciously dole out what they care to those who do not have anything. And we will be so grateful to have jobs and food that they get an entire nation of slave labor who wouldn't dare ask of anything. Get sick? Who cares, there are a dozen more who will gratefully take your job. Just like in many countries today.

They want the US at par with 3rd world nations.

Now, who exactly will pay for their military endeavors, when taxes are no more, is a good question. But they are not exactly financial geniuses. They refuse to understand that a strong middle class makes everyone money (lots of money!), including the richest of the rich.

Posted by: MsJoanne on August 20, 2009 at 10:21 AM | PERMALINK

In my experience, Bachmann's comments, as nutty as they sound, are consistent with a fairly standard argument among reactionary constitutional scholars. Such scholars have a lot of contempt for the use of the general welfare clause of the Preamble in permitting powers not explicitly cited in the first three Articles. In the twenty-first century, it's a fairly sophomoric position to take, but there *is* a narrow subset of scholars who buy into it. They quite seriously advocate *on constitutional grounds* for sweeping aside vast swaths of the federal government that don't deal with national defense, postal service, patents, and other areas narrowly defined by Articles I-III. Interestingly, a lot of those same scholars *might* accept a state-run health care system, depending on how it was constructed, but a federal system is absolutely forbidden under such theories.

Bachmann won't advocate the abolition of Medicare because doesn't have the courage of her convictions. She won't follow through because she hasn't taken up this argument as a part of some sophisticated constitutional philosophy. It's just a talking point for her, a shiny object that helps her peddle her far-right nonsense and dress it up in threadbare garb that *seems* quasi-scholarly.

Posted by: Andrew Wyatt on August 20, 2009 at 10:24 AM | PERMALINK

There's also no explicit mention in the Constitution of an air force. Should we just give all the planes and bases to the RAF?

Posted by: Luke Coley on August 20, 2009 at 10:26 AM | PERMALINK

"[I]t is not within our power as members of Congress, it's not within the enumerated powers of the Constitution for us to design and create a national takeover of health care. Nor is it within our ability to be able to delegate that responsibility to the executive."

Mrs Bachmann forgot to add, in all innocence, that, like the Supreme Court decision in Bush vs Gore, this reading of the Constitution applied only very narrowly, i.e. to the case at hand.

It was not to be seen as a precedent, most definitely not for any future Republican-controlled Congress.

Posted by: SRW1 on August 20, 2009 at 10:29 AM | PERMALINK

Thaumaturgist has it right: medical care is part of interstate commerce, which Congress can regulate. Just ask the drug companies, insurance companies, et al.

The other reply to Bachmann is that her theory make social security and medicare unconstitutional, too. Idiot. Somebody ought to run ads in her district saying, "Michelle Bachmann believes that programs like Medicare, in which the government funds health care, are unconstitutional."

Posted by: david in ny on August 20, 2009 at 10:30 AM | PERMALINK

Listening to stuff like reason, the law, or those she is to represent is analogous to Rep Frank's discussion with his furniture.

Posted by: the seal on August 20, 2009 at 10:31 AM | PERMALINK

why do we devote anytime discussing the rantings of this lunatic? she's beyond fringe.

Posted by: mudwall jackson on August 20, 2009 at 10:31 AM | PERMALINK

There is agreement among constitutional scholars that the "welfare" clause is not an independent grant of power.

Which is not to say that Bachman is in any way correct. Just to say that the orig post may be misleading.

Posted by: yessir on August 20, 2009 at 10:31 AM | PERMALINK

Doesn't matter whether Bachmann is willing to advocate the abolition of Medicare; the logical implication of what she said is that Medicare is unconstitutional. And that's exactly what her challenger should be saying beginning now and over and over again every day right up to the election: "Michelle Bachmann says Medicare is unconstitutional". Hammer the shit out of her on that point.

Posted by: Tom Hilton on August 20, 2009 at 10:32 AM | PERMALINK

As a person who knows that only a strict constructionist interpretation of the Constitution is valid, let me point out the following fact:

Article II Section 2 states that "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States..."

Therefore, it is obvious that the President is NOT the commander in chief of the Air Force nor the Marines nor the Coast Guard!

Do not forget that we are told repetitiously by the reich-wing that "if it ain't explicit within the Constitution, it ain't constitutional"!

Posted by: AmusedOldVet on August 20, 2009 at 10:34 AM | PERMALINK

Andrew Wyatt -- the "constitutional scholars," whom you name are not scholars -- they are fantasy writers. Actual "scholars" know you have to deal with the constitutional history of a country, that is, the decisions of the courts authorized to interpret the vague provisions of the constitution. In the real world of our constitution, there is no actual chance that this law is unconstitutional.

Posted by: David in NY on August 20, 2009 at 10:34 AM | PERMALINK

No, the Obama plan is not a national takeover of healthcare - but thanks to constant, constant repetition, millions of Americans think it is. And thanks to the clever smokescreen of "death panels", Democrats have done exactly nothing to dispel this belief.

That's what Swiftboating is all about. The point isn't the big, obvious lie itself, which can eventually be debunked. Rather, it's to distract the opposition and the media while you're spreading a suite of less obvious (but much more dangerous) smaller lies. While Democrats and the media scramble around debunking the Big Lie, the smaller ones gain hold.

So in 2004, eventually most people were convinced that John Kerry did, in fact, serve honorably in Vietnam. But meanwhile most people also became convinced that his protest activities afterwards constituted treason. That's why he lost.

Similarly, I'm guessing a majority or a very substantial minority (haven't bothered to look at the polls) think the Obama plan is a public takeover of healthcare, because no one's had the time, energy or attention span to disabuse them of this. Too busy with the Death Panels.

Posted by: Basilisc on August 20, 2009 at 10:35 AM | PERMALINK

Tom,
That will likely give her a narrow win in a third term in the present 6th district. If she runs for governor she will find a rude suprise.

Posted by: the seal on August 20, 2009 at 10:39 AM | PERMALINK

I'm guessing Bachmann is in a competition with her constituents to see who can reach Planet Crazy first. Think about it for a minute. What is scarier: that Bachmann is this crazy and a member of Congress or that there are some 100,000 other people (citizens) that re-elect her every two years? For me it is the latter. There are just way too many crazies in this country (remember Bush...twice; seen the townhalls lately) for my liking. Bachmann is just a symptom of the Crazy Disease that has infected this country and, sadly, it is terminal.

Posted by: Ralph Kramden on August 20, 2009 at 10:39 AM | PERMALINK

The wonderment of Ms. Bachmann (ET AL!) is this: If they so detest government , why in the world do they RUN FOR OFFICE?

Posted by: DAY on August 20, 2009 at 10:40 AM | PERMALINK

yessir:

IANAL, but I wrote a review years ago about the origins of federal disaster relief. I don't have it front of me, but I'm fairly certain that the general welfare clause was used as the foundation for that expansion of federal powers, without reference to any of the Article I-III enumerated powers. You may be correct, that modern constitutional scholars don't generally accept such reasoning anymore--reliance on a broad interpretation of the commerce clause seems much preferred--but one could argue that agencies such as FEMA exist based on general welfare justifications.

Posted by: Andrew Wyatt on August 20, 2009 at 10:40 AM | PERMALINK

Mudwall is right. Bachmann only goes on Fox -- she would not subject herself to questions in any other venue. Note her for her comedic values and move on. Crazy talks to crazy, or as my wife calls her, Bachmann Stupid Overdrive.

Posted by: Michael Carpet on August 20, 2009 at 10:45 AM | PERMALINK

@Andrew

The clause has indeed been used to expand the reach of the federal government, but not as an independent source of power. It "functions" as a (tiny) limit on the tax and spend power of which it is a part.

A well-known example of this is the mandate to states: "raise your drinking age or no federal highway funds."

Posted by: yessir on August 20, 2009 at 10:46 AM | PERMALINK

Whoops. I already see that I made a rookie mistake: the "general welfare" phrase appears in both the Preamble and in the first paragraph of Article I, Section 8. The question is, I guess, whether the Article I reference to Congress having the power to make laws for the general welfare is simply context for the enumerated powers listed below it, or a broader license to make laws as the nation's circumstances warrant.

Posted by: Andrew Wyatt on August 20, 2009 at 10:46 AM | PERMALINK

Sorry, I should have said . . . the "no highway funds" provision is possible as an exercise of the spending power. Generally Congress under its tax and spend power can condition its spending (or grants to states.)

The non-existent "general welfare power" is a common red herring on bar exams.

Posted by: yessir on August 20, 2009 at 10:49 AM | PERMALINK

yessir:

I've also seen it advanced that the key part of the "general welfare" clause is the "general," not "welfare." Meaning that the clause is intended to prevent Congress from making laws that fall within its enumerated powers, but narrowly benefit the welfare of individuals or groups rather than the nation's general welfare.

Posted by: Andrew Wyatt on August 20, 2009 at 10:54 AM | PERMALINK

yessir:

A little Googling seems to indicate that the "Hamiltonian" view of the welfare clause seems to dominate, with U.S. v. Butler and Helvering v. Davis stating fairly explicitly that the clause is an independent source of power. From U.S. v. Butler, via Wikisource:

"[T]he [General Welfare] clause confers a power separate and distinct from those later enumerated, is not restricted in meaning by the grant of them, and Congress consequently has a substantive power to tax and to appropriate, limited only by the requirement that it shall be exercised to provide for the general welfare of the United States. … It results that the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution. … But the adoption of the broader construction leaves the power to spend subject to limitations. … [T]he powers of taxation and appropriation extend only to matters of national, as distinguished from local, welfare."

Is this understanding not consistent with current constitutional thought? I haven't found any references to a more contemporary sea change that would negate the reasoning of Butler. Maybe someone can provide additional clarification.

As an aside, isn't it interesting that a no-nothing nutter like Bachmann can provoke such heady discussion. :)

Posted by: Andrew Wyatt on August 20, 2009 at 11:06 AM | PERMALINK

Appeals to the Constitution are not restricted to the Right. It's also a common argument among Democrats that any must-carry, must-issue insurance mandate would be unconstitutional. (The ACLU, among others, thinks such a challenge unlikely to succeed.)

"Unconstitutional" often means little more than "I really don't like it" -- and no one likes insurance.

Posted by: Davis X. Machina on August 20, 2009 at 11:06 AM | PERMALINK

SHE'S NOT A CONSTITUTIONAL SCHOLAR, EITHER....

OK, I'll bite. What is she?

A clown? An embarrassment? Proof positive that the people can't be trusted to choose their leaders? (actually I thought that GWB had that one answered already)

Posted by: majun on August 20, 2009 at 11:09 AM | PERMALINK

Oh, stop pelting poor Rep. Bachmann. It can't be easy to work for years and then see some upstart from Alaska swoop in and claim your title of "craziest woman in the Republican party". Bachmann is being starved of media oxygen by "Popcorn" Palin, and has to do something to get back in the Daily Show's eye.

Posted by: Bernard HP Gilroy on August 20, 2009 at 11:10 AM | PERMALINK

No No No! Turn it around - "Michelle Bachman wants to take away your Medicare Benefits"! "The Republican Party will deny your coverage under the VA"!

1) That's not a lie - if they could get away with it, they would dismantle those programs.

2) It's not trying to refute nonsense- it's accepting their nonsense at face value. If the Honorable Michelle Bachman thinks that Congress lacks the power to create such programs, then the existing ones must be unconstitutional - put her on the defensive! If we try to respond reasonably - by pointing out she is wrong, we come off as dull and people who believe her won't change their minds. If instead we force her to confront the consequences of he beliefs - she either shuts up or has to deal with people asking her, "Why do you want to reduce my benefits?".

Posted by: Joanne on August 20, 2009 at 11:19 AM | PERMALINK

Thanks for this one.

The Constitution is even more on our side than you indicate, and you've already got a great analysis here.

"The general welfare..." That phrase is used not once, but twice. First, the Preamble: "We the people of the United States, in order to ... promote the general welfare..." Second, Article I, Section 8: "The Congress shall have power to lay and collect taxes... to ... provide for the ... general welfare of the United States..." "General welfare" is one of two phrases given the prominence of this double citation, the other being "the common defense." Note, by the way, that it is Congress which is given this power. Among many things that Obama should be given credit for, letting Congress be Congress is one of them.

For any who argue that a phrase with the word "general" should be given a narrow interpretation, the "Founding Fathers" had what should be a debate ender: the so-called "elastic clause," which you cite. Note the words "all laws," "necessary and proper," and "all other Powers." Those are some really robust phrases.

Then there's the history you cite: Medicare, Social Security, federal education funding, Medicaid, the VA health system, and the GI Bill.

This is a hell of a lot stronger than a mere "reasonable reading"! Democrats need to take back the Constitution. Some advice for President Obama and our Congress-critters: put any discussion of health care in the context of the Preamble and Article I. Talk about "the general welfare" of "the United States."

Posted by: CMcC on August 20, 2009 at 11:21 AM | PERMALINK

Davis X. Machina:

We already have de factor "shelter mandate" in most areas of this country due to vagrancy laws: municipalities essentially mandate that individuals sleep in an owned or rented residence, sleep in a hotel, or, as the only alternative, sleep in a charity shelter every night.

If forcing individuals to spend money on a product related to their health and welfare is unconstitutional, we're already there.

Posted by: Andrew Wyatt on August 20, 2009 at 11:23 AM | PERMALINK

@Andrew

No Andrew, Butler is generally right about tax and spend (the stuff about the 10th is wrong), but read it a bit more closely.

I am confident that the language you have bracketed as "[T]he [General Welfare] clause" actually refers to the spending power (or the entire tax and spend power.)

You quoted a nice, accurate summary passage: "Congress consequently has a substantive power to tax and to appropriate, limited only by the requirement that it shall be exercised to provide for the general welfare of the United States." General welfare is a limit (not much of one) on the tax and spend power, not an independent grant of power.

BTW, what Bachmann is saying may not be dramatically different than the pre-1935 Court and what Justice Thomas would say today.

Posted by: yessir on August 20, 2009 at 11:24 AM | PERMALINK

yessir:

I think I see where you're coming from now. Thanks for the clarification.

I haven't seen Thomas grouse about the general welfare clause, but he does seem to despise the expansion of the commerce clause. Sometimes I think he would prefer to undo not just the Franklin Roosevelt era, but the *Teddy* Roosevelt era. About the only thing he has going for him is the consistency of his lunacy, at least compared to Scalia. To his credit, Thomas had the stones to stand up in Raich as say that there was no way in hell growing a few marijuana plants for personal medicinal consumption was "commerce."

Posted by: Andrew Wyatt on August 20, 2009 at 11:32 AM | PERMALINK

can someone in Minnesota explain just what sort of voters inhabit Bachmann's district? Because they must be mad as hatters to keep electing this loon. What about it? What the hell is going ON in her district, anyway?

Posted by: ll on August 20, 2009 at 11:37 AM | PERMALINK

What would Republicans do? They take even the most mild Democratic position, and then push it to the most extreme possible conclusion and behave as though this extreme conclusion is simply a logical extension of the Democrats position. Thus voluntary end-of-life counseling now becomes mandatory euthanasia

Ergo, the way to deal with Michelle is to conclude that, although she doesn't explicitly state it, her position is to eliminate Medicare, Social Security, and the VA health system. Now you treat that as absolute fact and spread this loudly and frequently.

Posted by: linus bern on August 20, 2009 at 11:39 AM | PERMALINK

It may give the glibertarians fits, but given the power that various national corporations have been flexing in their efforts to oppose reform, I'd like to see the Congress exercise its Constitutional power to regulate interstate commerce quite a bit more.

(And on another subject, but isn't it high time we forced a revision of the asinine Supreme Court declaration that corporations are legal persons?)

Posted by: Gregory on August 20, 2009 at 11:54 AM | PERMALINK

If health care legislation is unconstitutional, then AmeriCorps would also be unconstitutional. Michelle Bachmann should sue her son for the illegal acquisition of taxpayer funds.

Posted by: Cindy McCant on August 20, 2009 at 11:58 AM | PERMALINK

In the comic strip Kudzu, the smarter characters claim they elected a loser to congress to get him out of town and keep him out of town. Possibly Bachmann got elected because her neighbors hoped she'd go to Washington and stopping screaming crazy things at all their dinner parties?

Posted by: Midland on August 20, 2009 at 11:59 AM | PERMALINK

(plagiarizing myself...)
Quoting James Madison in the act of vetoing a canal-construction bill in 1803: ''To refer the power in question to the clause "to provide for common defense and general welfare" would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms "common defense and general welfare" embracing every object and act within the purview of a legislative trust.''
If the federal government has only those powers strictly granted to it, and the power to create a healthcare system is not so granted -- and it isn't -- then the federal government cannot create said system. The counterargument, interestingly enough, also comes from James Madison -- made some time earlier, while arguing over the Constutionality of chartering the Bank of The United States, when he pointed out that "very few acts of the legislature could be proved essentially necessary to the absolute existence of government" and that "no power could be exercised by Congress, if the letter of the Constitution was strictly adhered to, and no latitude of construction allowed, and all the good that might be reasonably expected from an efficient government entirely frustrated"; he suggested that the wording be "understood so as to permit the adoption of measures the best calculated to attain the ends of government, and produce the greatest quantum of public utility". The Supreme Court eventually had something to say about the notion in 1805, when Chief Justice Marshall wrote "Congress must possess the choice of means, and must be empowered to use any means which are in fact conducive to the exercise of a power granted by the constitution" and again in 1819 when the Court held in McCullough vs Maryland that "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional."
Whereas in the bill vetoed by Madison in 1803 the benefits would largely have gone to residents of the state of New York and the public only tangentially, the entire nation is affected by the health care issue; more practically, many insurance companies are interstate entities, thus dragging in the notorious Commerce Clause. In fact, the Supreme Court held in Gonzales v. Raich that Congress can use the Commerce Clause to regulate activity that does not involve buying or selling, does not cross state lines, and has no demonstrable effect on the national market, which led to Clarence Thomas stating, in his dissent, that by that ruling Congress "can regulate virtually anything -- and the federal Government is no longer one of limited and enumerated powers."

Posted by: Forrest on August 20, 2009 at 12:10 PM | PERMALINK

Uh..this might sound off the wall, but here goes: maybe it's time for a constitutional amendment that that makes health care a right. If it's implicit in "the general welfare clause" why not take the next step and make it explicit in an amendment? Take a look at the constitutional amendments already in place: most of them deal with giving more rights to individuals - the right to bear arms, to speak freely, to not be enslaved, to vote, etc.

To quote from Thoreau's "Civil Disobedience" : "The progress from an absolute to a limited monarchy, from a limited monarchy to a democracy, is a progress toward a true respect for the individual…Is a democracy, such as we know it, the last improvement possible in government? Is it not possible to take a step further towards recognizing and organizing the rights of man?"

The various amendments seem to be steps "towards recognizing and organizing the rights of man" - wouldn't the affirmation of an individual's right to health care be another step in that direction?

Posted by: delNorte on August 20, 2009 at 12:13 PM | PERMALINK

delNorte: We may not even be able to pass legislation making marginal adjustments to our healthcare system. Here's what amending the U.S. Constitution requires:

To Propose Amendments

--Two-thirds of both houses of Congress vote to propose an amendment, or
--Two-thirds of the state legislatures ask Congress to call a national convention to propose amendments. (This method has never been used.)

To Ratify Amendments

--Three-fourths of the state legislatures approve it, or
--Ratifying conventions in three-fourths of the states approve it. This method has been used only once -- to ratify the 21st Amendment -- repealing Prohibition.

The Supreme Court has stated that ratification must be within "some reasonable time after the proposal." Beginning with the 18th amendment, it has been customary for Congress to set a definite period for ratification. In the case of the 18th, 20th, 21st, and 22nd amendments, the period set was 7 years, but there has been no determination as to just how long a "reasonable time" might extend.

Posted by: shortstop on August 20, 2009 at 12:21 PM | PERMALINK

maybe it's time for a constitutional amendment that that makes health care a right.

It was time, sixty years ago. See Cass Sunstein's The Second Bill of Rights: FDR's Unfinished Revolution and Why We Need It More than Ever.

Posted by: Davis X. Machina on August 20, 2009 at 12:41 PM | PERMALINK

"the real silver lining of the failure of health care reform will be that gradually more and more folks will begin to get a glimmer that we are no longer capable of governing ourselves...
"

Posted by: neill

Doesn't seem to bother the people of California that much.

Ian Millhiser caught the point I would make, that under this idea of the Constitution we can't provide Socialist (VA) health care for Veterans, who are after all just regular citizens and no longer employees of the National Government.

Posted by: Lance on August 20, 2009 at 1:37 PM | PERMALINK

delNorte, You stole my thunder before I got a chance. However, in light of the long process shortstop outlined, why don't we bring the fight directly to Bachmann. Sue her for not following the Constitution and providing health care coverage to all in promoting all citizens' "general welfare". I can't think of something that fits better with "general welfare" than health care!

Posted by: GreyGuy on August 20, 2009 at 2:42 PM | PERMALINK

...but it was perfectly OK for George W. Bush to take the country to war on his own say-so ( I know the measure passed by popular vote, but the reasons were all invented by Bush and his handlers) and to have to sole, irreversible power to decide who was an enemy combatant (a word he likely couldn't spell)?

Ahhh... I'm beginning to get it. Only REPUBLICAN presidents should have unlimited personal power!

Posted by: Mark on August 20, 2009 at 3:46 PM | PERMALINK

Sorry, I meant "THE sole, irreversible power..."

Posted by: Mark on August 20, 2009 at 3:50 PM | PERMALINK

It's called "The Interstate Commerce Clause." It's been used as the basis for everything from regulating food, to the Civil Rights Act, and it obviously covers health care, since the SCOTUS has never held Medicare to be unconstitutional.
Michele...hello...anybody there? Medicare? Remember Medicare?

I cannot believe that this woman ever went to law school. Seriously. Michele, didya ever take Con Law? Remember all those cases from the 1920's when the SCOTUS started saying, yeah, federal regulation of this and that IS within the power of Congress under the ICC?

God, what a frickin' bimbo.

Posted by: ajaye on August 20, 2009 at 10:59 PM | PERMALINK
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