Assigned Reading: Health Care Reform and the Constitution
(FROM: The Wall Street Journal)
A great piece of writing from the Hon. Andrew Napolitano in yesterday’s Wall Street Journal. I just saw it now. And while I’m sure many of you have already seen it, I wanted to be positive.
Here’s an excerpt, but please read the whole thing. The part about South Carolina Congressman Jim Clyburn is precious.
[I]t’s clear that his plan is unconstitutional at its core. The practice of medicine consists of the delivery of intimate services to the human body. In almost all instances, the delivery of medical services occurs in one place and does not move across interstate lines. One goes to a physician not to engage in commercial activity, as the Framers of the Constitution understood, but to improve one’s health. And the practice of medicine, much like public school safety, has been regulated by states for the past century.
The same Congress that wants to tell family farmers what to grow in their backyards has declined “to keep regular” the commercial sale of insurance policies. It has permitted all 50 states to erect the type of barriers that the Commerce Clause was written precisely to tear down. Insurers are barred from selling policies to people in another state.
That’s right: Congress refuses to keep commerce regular when the commercial activity is the sale of insurance, but claims it can regulate the removal of a person’s appendix because that constitutes interstate commerce.
What we have here is raw abuse of power by the federal government for political purposes. The president and his colleagues want to reward their supporters with “free” health care that the rest of us will end up paying for. Their only restraint on their exercise of Commerce Clause power is whatever they can get away with. They aren’t upholding the Constitution—they are evading it.
As far as I can tell, the only possible defense available to the Democrats should someone of consequence actually press them about the constitutionality of health care reform would be found in the Necessary and Proper Clause of Article 1, Section 8, a clause which the federal government has been known to pervert in the past.
Even that would be suspect, though. Chief Justice John Marshall wrote in McCullough v. Maryland that if “the end [is] legitimate,” if it is “within the scope of the Constitution,” then “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.” Even if the Democrats choose to pull the Necessary and Proper lever, I still don’t believe that health care reform is consistent with the letter and spirit of the Constitution.
But take Judge Napolitano’s word for it, not mine. That man has more legal knowledge in his pinky fingernail than I ever will in my entire body.