Latimer on Law

A Lesson In Constitutional Law For Rep. Perry

A Lesson In Constitutional Law For Rep. Perry

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare and secure the blessings of liberty to ourselves and to our posterity, do ordain and establish this Constitution for the United States of America. - Constitution of the United States, Preamble

Republican state Rep Jeffrey Perry's purported "constitutional" argument against the pending national health care reform legislation is riddled with so many inaccuracies and false assumptions it's difficult to choose where to begin a response.  But let's start with the fundamental constitutional purpose of promoting the general welfare of the United States. 

          Perry writes that the "general welfare" provision is "widely considered simply as a preamble to the Article I enumerated powers" of Congress which, as implicit in his argument, can therefore simply be ignored.  That is  widely considered only by know-nothing self-described "conservatives" like Perry who populate today's GOP and who loathe the idea that government can provide services and benefits to ensure the well being of all citizens supported by tax revenues.

          The Preamble to the Constitution of the United States was not considered to be mere surplusage by the Founding Fathers, as it is by know-nothing Republicans like Perry today.  It is intended, rather, to state the broad, fundamental purposes of our democratic constitutional government in light of which all of the more specific provisions which follow must be understood.

           The Preamble to the Constitution lists several broad objectives, i.e. the basic purposes and ideals of our democratic American republic, as recited in the header above.  Of those stated ideals, only two appear later in the enumerated powers of Congress, both of them in the tax clause, Article I, Section 8.  There, it is expressly provided that Congress shall have the power to lay and collect taxes "to pay the debts and provide for the common defense and general welfare of the United States," emphasis added.

           Here, providing for the general welfare with tax revenues is stated on co-equal footing with providing for the common defense, which tells me that the Founders believed it was a very important purpose.  To follow Perry's logic, however,  we would have to assume that Congress' use of our tax money to fight resource wars for corporate opportunity in places like Iraq is unconstitutional, even if it might somehow be included within the penumbra of "common defense," as it's simply found by way of "preamble" to the enumerated powers.

           Perry then compounds his confused, error-laden argument by suggesting that federal health care reform legislation is somehow unconstitutional because the Constitution did not provide for taxing income until the 16^th Amendment was adopted in 1913.  The State Representative from Sandwich apparently cannot comprehend that the several amendments,  including the Bill of Rights, are an integral part of the Constitution of the United States as provided by Article V, and as such they are "the supreme law of the land" as expressly stated in Article VI.   It is appalling that an elected representative of the people can be so ignorant of such basic principles of constitutional law. 

            Perry's ignorance is further demonstrated by the Tenth Amendment argument he parrots from the national right-wing media hacks.  The 10^th Amendment is the basis for "states rights" opposition to federal legislation across the board.  Historically, it was the rallying call for about a hundred years in defense of Southern Jim Crow laws after the Civil War, and it reached fever pitch in the 1950s as the Supreme Court began to strike those laws down under the 14^th Amendment.

             Back then, when the Republican Party had some intelligence and integrity, President Eisenhower rejected that reactionary mantra summarily in 1957 by ordering federal troops to enforce integration of Little Rock Central High School, to carry out the mandate of the Supreme Court's ruling Brown v. Board of Education, against the 10^th Amendment "states rights" claims of Arkansas Governor Orval Faubus.  That all changed with Reagan's blatant racist appeal to Southern bigotry when he opened his 1979 presidential campaign with a visit to Philadelphia, Mississippi, where the local Klan got away with murdering three civil rights workers, declaring his firm belief in "states rights."  Todays GOP rants about states rights in a wide variety of contexts, from school prayer, teaching creationism, criminalizing homosexuality and other state initiatives that trample our civil rights and now, by tortured logic,  opposing any significant health care reform.

            What makes that Tenth Amendment argument legal nonsense, in context of either desegregation, separation of church and state,  or providing health care in the interest of the general welfare, is the fact that powers are reserved to the states only if they are not delegated to the federal government nor prohibited to the States.  In context of racial segregation, establishment of religion, et cetera, the Fourteenth Amendment specifically prohibits the states from abridging the privileges or immunities of American citizens, depriving any person of equal treatment under the law, or  life, liberty or property, without due process of law.  That  principle of due process is embodied in the 5th and 14th Amendments,  including substantive due process under which the federal courts  overturn violations of civil rights and procedural due process in  criminal cases. 

           The power to legislate in furtherance of the general welfare  is expressly given to the federal government through acts of Congress, at Article I, Sect. 8, in addition to the general power of the federal judiciary to determine  issues arising under the Constitution as between the states and their citizens. Thus, after the Court began to strike down the Jim Crow laws, Congress was able to enact the Civil Rights Act of 1964 under the political leadership of LBJ, bringing equality to Afro-Americans and other minorities in a wide range of economic, educational and social spheres that had previously been denied to them under the malignancy of 10th Amendment states rights reasoning. 

           Similarly, today, Congress is empowered under Article I, Sect. 8, through taxation and regulation of commerce, to promote the general welfare by enacting socially beneficial programs into law, such as Social Security, Medicare  and ERISA,  public health laws governing drug safety and communicable disease control and, by extension, health care reform legislation.

           Self-proclaimed "conservatives" like Perry, in reality nothing more than social reactionaries, like to argue that the general welfare of the United States doesn't apply to individuals, as if the Preamble to the Constitution didn't begin with "We the People."  To talk about the general welfare of the United States as being something different from the welfare of its people is inane.  In any event, looking at the question of health care reform collectively, and not just as a matter of individual rights, clearly affects the general welfare of the United States.

         Our general welfare  is manifestly imperiled when hundreds of thousands of  Americans have no real access to health care.  When large numbers of people carrying untreated communicable diseases are allowed to mingle with the general population, it harms the general welfare.  When large numbers of people suffering untreated chronic diseases miss work frequently or are discharged for absenteeism, that harms the general welfare. When large numbers of people become disabled and have to go on SSDI or general relief because treatable diseases are not treated, that harms the general welfare.  When large numbers of people cannot afford to provide needed medical care for their young children, i.e. our posterity, that harms the general welfare.   Federal laws which address such problems by providing for universal health care will therefore promote the general welfare of the United States beyond any doubt.

            Perry recognizes that Article I, Sect. 8, gives Congress the power to regulate interstate commerce including today's interstate insurance industry, but then inexplicably claims that the individual mandate, requiring everyone to purchase insurance, doesn't rise to the level of interstate commerce.  Here, he conflates the commerce clause issue with constitutional protection of individual rights by saying that the government cannot compel its citizens to purchase a product like health insurance.   Perry clearly confuses the issue of delegated powers in Article I with that of our individual rights which arise under the first ten amendments.

            Perry actually raises an interesting constitutional issue on this point, whether Congress can, in the name of its clearly delegated authority to promote the general welfare, compel individuals to purchase health insurance for their own good, thus depriving them of "freedom of choice."  As with everything else under the Constitution, it's a question of balancing the public interest vs. individual liberties.  As Justice Holmes remarked, freedom of speech doesn't mean we can yell "Fire!" in a crowded theater when there is no fire.

           Under Perry's argument however, premised on an extremely restrictive reading of the Constitution,  if Congress cannot compel us to purchase health insurance to promote the general welfare, then it surely cannot compel us to fight in wars to further the co-equal constitutional purpose of providing for the common defense, especially when such wars as in Vietnam and Iraq have nothing to do with actually defending America. 

           Moreover, when we are speaking of individual rights, it's not just the federal government that must be restrained but the states as well -that's what the  principle of substantive due process is all about, enforceable in the federal courts against state government under the 14th Amendment.   In the specific context of requiring  individuals to buy health insurance, if it's unconstitutional for Congress it's also unconstitutional for the Solons on Beacon Hill, as with the Mass. Health Care Reform Act of 2006, initiated by GOP Governor Mitt Romney, voted for by most  Republican state legislators, and then signed into law by Romney.

           Of course, that particular issue of individual rights can be completely avoided by the simple, humane and logical step of enacting a single-payer, publicly financed health care insurance plan, to cover everyone supported by our federal tax dollars.  This is clearly an important and permissible use of tax revenues to support the general welfare as provided in Article I, Sect. 8, of the Constitution, and it forces no-one to purchase an insurance product, as we all must do today in Massachusetts.

           Mention single payer or even a public option, however, and Republican obstructionists like Perry all start bleating about "socialism."   But since we're discussing constitutional law, here's  another basic fact to consider.  Nowhere does the Constitution mention capitalism as the required or even preferred basis of the national economy, nor does it prohibit the socialization of services or industries by either the federal or state government.  It does mention private property in the  5^th Amendment which allows the government deprive individuals of their property only through due process of law, but permits the government to take private property for public use, i.e. socialize it, upon payment of just compensation.

            Today, we Americans take for granted a wide variety of socialized governmental services, many of which had at one time been provided by private enterprise, from public schools, to public waste management, to public water supply to public fire protection. Interestingly, fire protection had at one time been provided by insurance companies like Fireman's Fund, until the public began to understand it was too important a function to be left to profit-driven private businesses.  Providing health care in the name of promoting the general welfare is equally important.

            Perry's presumed right not to be compelled to purchase insurance is not specifically listed in the Bill of Rights or anywhere else in the Constitution.  Such a right is, perhaps, within the broad scope of the 9^th Amendment subject to the principles of due process, as is the fundamental right of the people to have access to health care.

            Significantly, there is no insurance industry welfare clause to be found anywhere in the Constitution, either expressly or implicitly, as a limit on the government's power to provide universal health care to promote the general welfare.  That socialized function of the federal government is not just constitutional, it's intelligent, humane and long overdue.