Bryan Fischer
The "general welfare" clause, the "commerce" clause, and MussoliniCare
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By Bryan Fischer
March 25, 2010

The few congressmen who have even thought about a constitutional justification for the federal takeover of the entire health care industry have usually mumbled something about the "general welfare" clause and the "commerce" clause.

One hapless senator cited the "health and wellbeing" clause in the Constitution, making her less qualified for public office than the average high school civics teacher. Rep. John Conyers the chairman of the House Judiciary Committee, said this week that authority for the government takeover of health care was found in the "good and welfare" clause of the Constitution, which of course does not exist.

Even Rush Limbaugh struggled to explain yesterday on his program why the the commerce clause does not justify this government intrusion. If you read this post through to the end, you will be more educated on this issue than Rush Limbaugh, something you only rarely will be able to say.

In Article I, Section 8, the Congress is given 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 third paragraph grants to Congress the authority to "regular Commerce...among the several States."

Unfortunately for our socialist friends, while both clauses seem at first blush to offer some cover to their tyrannical mandate that every American buy insurance or go to prison, the case for each falls apart immediately when the words of the Founders themselves are heard.

The Founders made it abundantly clear that the "general welfare" clause meant only that when the central government discharges its responsibilities faithfully, everyone in American benefits. After all, that's what "general" welfare means it's not the welfare of particular classes, or particular income groups, but "general," meaning everybody is better off.

For instance, if the central government faithfully discharges its duty to provide funding for a military to protect us from foreign danger, every American sleeps more safely in his bed at night, no matter how rich or poor he is or what race he happens to be.

The Founders were actually quite explicit that the phrase "general welfare" could not be interpreted to give the central government carte blanche to do whatever it wants to do.

For instance, James Madison, the Father of the Constitution, said, "With respect to the two words 'general welfare,' I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators."

He later wrote, "[T]he government of the United States is a definite government, confined to specified objects...If Congress can do whatever in their discretion can be done by money, and will promote the general welfare, the government is no longer a limited one possessing enumerated powers but an indefinite one..."

Thomas Jefferson added his confirmation. "Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated."

With regard to the "commerce" clause, which an activist Supreme Court has used since 1934 to justify federal intervention into virtually every single aspect of American life, including the flush capacity of our toilets, we have the words of James Madison himself, the "Father of the Constitution," to make clear the Founders' original intent.

It will come as a surprise to most Americans and probably even to most high school civics teachers that its purpose was quite narrow: to prevent states from charging import and export duties on goods transported across their borders. That's it. That is the only interstate "commerce" the Founders were trying to regulate, control or prevent.

They knew that if individual states were allowed to charge an import duty on any goods brought into their states, or charge export duties on any goods shipped out of their jurisdiction, trade wars between the individual states would quickly break out and the Union itself would be in jeopardy.

So to prevent these kind of trade skirmishes, the states wisely entrusted to the central government the authority to prevent states from starting them. But that is the sole objective of the "commerce" clause and thus it provides no constitutional cover whatsoever for those who want to use it as a blunt instrument to beat the states into submission on socialized medicine.

Here is the way Madison put it, in Federalist Paper No. 42.

He wrote that the "defect of power" in the Articles of Confederation, which the Constitution replaced, was its inability to "regulate the commerce between its several members."

So to remedy this defect, the central government was given this regulatory power to provide "relief" for the "States which import and export through other States, from the improper contributions levied on them by the latter."

In other words, if you lived in a state without a sea port, you might have to ship your goods through a neighboring state to get your goods shipped to overseas markets. And you'd have to import overseas goods in reverse by likewise transporting them through states that border the Atlantic. Thus coastal states were in a position to force inland states to pay customs duties just to get their goods to market and receive product in return. The potential for what would amount to extortion was obviously quite high.

Madison pointed out that if the central government could not prevent one state from charging import and export duties on goods from other states, "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."

This inevitably, he observed, "would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquillity."

Madison went on to cite the example of Switzerland, where "each canton is obliged to allow to merchandises a passage through its jurisdictions into other cantons, without an augmentation of the tolls."

In Germany, he pointed out, it was against the law for "the princes and the states" to "lay tolls or customs on bridges, rivers or passages" without the consent of the central government.

And lastly he cited the example of the Union of the Netherlands where member states were not permitted to "establish imposts disadvantageous to their neighbors, without the general permission."

To review: the sole purpose of the commerce clause is to give the central government the authority to prevent one state from charging import and export duties on goods from or to other states. That's it. Period. End of story. It gives no other power of action to the federal government. None. Nada. Zilch. Zip.

The American people, driven back to re-examine the Constitution by liberal overreaching, now know the Founding documents much better than the politicians who abuse them. We are going to insist they observe the boundaries of the Constitution whether they like it or not.

And the time to begin is right now, by an assertive, staunch, unbending, unwavering opposition to the government takeover of health care. It's immoral, unethical and most essentially, flatly unconstitutional. To paraphrase Martin Luther, "Here we stand; we can do no other."

© Bryan Fischer

 

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