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Editorial
The
Constitutional Rights and Responsibilities of Members of Congress
By Mark Shepard
 I
recently received a voice message where Congressman Peter Welch respectfully
responded to my emails pointing out many constitutional scholars who make
their case that the healthcare bills as passed the U.S. House or Senate
expands the role of the federal government beyond the limits prescribed
by the Constitution.
While I appreciate being
personally contacted on this matter, three reasons compel me to respond
personally as well as in a more public manner such as this. First, Congress
appears determined to – at almost any cost – push through Congress a bill
that is neither constitutionally legal nor supported by a majority of Americans.
Second, Rep. Welch’s own deep commitment to getting such a bill passed.
Last, but surely not least, are the sweeping long-term consequences his
rationale would have on our very form of government.
Please take a few minutes
to read the letter below and then consider respectfully expressing your
thoughts to Rep. Welch at http://welch.house.gov.
An Open Letter to
Representative Peter Welch
Representative Peter Welch,
United States Congress
February 26, 2010
Dear Rep. Welch:
Thank you for your recent
voice message where you respectfully identified a source for why our views
greatly differ on the role of the federal government in healthcare.
In particular, you contend that the Court is "ultimately responsible" to
ensure that a policy is constitutional. Such a view allows Congress
to have a lesser degree of responsibility to uphold the Constitution than
the Court and in fact makes Congress inferior to the Court. While
Americans have little confidence in Congress, I think it is both wrong
and unwise for Congress to take a back seat to the Court. I contend
that many of our present day problems stem from this weakening of the legislative
branch of government.
Ensuring policy is presumptively
constitutional, prior to implementation, is a primary responsibility of
every member of Congress, the President, and the courts. You each
took an oath to responsibly understand and abide by the intent of the Constitution.
This pledge requires studying the writings of the framers to understand
exactly what was intended by the specific words and phrases they chose
to dictate the constitutional consequences of their deliberations.
Words and phrases may change in perceived meaning over time which, if taken
face-value at any given moment, may allow for altered application of the
Constitution if not checked against their original context.
From those historical writings
(see some below) I, and a growing number of Americans, see no way to construe
the Constitution as giving the federal government the power to control
healthcare and mandate all Americans purchase a federally prescribed health
insurance policy.
If any of the three branches
of government should have more governance capability than the others, it
must be the Legislative - by its constitutional design being the closest
to the people and having the power to make laws that regulate both the
executive and judicial branches as well as having the power to remove ,
under prescribed circumstances, the "President, Vice President and all
civil officers of the United States" from office (Article II, section 4)
as well as the power to create and abolish entire circuit courts.
However, despite that power, the legislative branch remains neither above
the law nor the Constitution. Congress can only change law by lawful
means. Thus, if Congress desires to pass a bill along the lines of
the massive Senate or House healthcare bills, its appropriate genesis would
be the introduction of an amendment to the Constitution framing that desired
outcome.
Not only as a member of Congress
is it your foremost duty to uphold and defend the Constitution and to search
out the original intent of the words penned by our nation’s framers, but
by your very profession as a lawyer you are bound and guided by the law
and the constitution. Indeed your interest in understanding the original
intent of the Constitution should be no less than your desire as a lawyer
to fully understand the background and original intent of any law that
might impact your client.
This is a matter far larger
than this single healthcare bill. The very form of our government,
with appropriate checks and balances and citizen input, is at stake.
Your viewpoint ultimately puts five people – a majority of the Supreme
Court – as the ultimate deciders of the direction of our country.
That perspective is far removed from how, and why, this nation was founded.
It also undermines the rightful responsibility of the body in which you
are presently serving, and in doing so, undermines the people’s ability
to guide our government. By your, and many of your colleagues’ inattention
to the constitutional framing of our federal government, no longer is our
government "…of the people, by the people, and for the people…" as Congress
inches America closer and closer toward tyranny.
Respectfully,
Mark Shepard, Bennington,
Vermont, Vermont State Senator, 2003-2006
A Look at the Source Documents
Both Congressman Welch and
Senator Leahy have cited to me that Article 1, Section 8 of the Constitution
is what gives them the authority to enact the laws the each voted for.
Below are some quotes from James Madison (widely considered the father
of the Constitution) and Thomas Jefferson on the general welfare clause
and the commerce clause as well as the tenth amendment.
(Note: The sections below
were highlighted to help identify key texts related to the general welfare
clause, commerce clause and the Bill of Rights/Tenth Amendment.)
Article 1, Section 8 of the
U.S. Constitution:
The Congress shall have
power to lay and collect taxes, duties, imposts and excises, to pay the
debts and provide for the common defense and general welfare of the United
States; but all duties, imposts and excises shall be uniform throughout
the United States;
To borrow money on the credit
of the United States;
To regulate commerce with
foreign nations, and among the several states, and with the Indian tribes;
To establish a uniform rule
of naturalization, and uniform laws on the subject of bankruptcies throughout
the United States;
To coin money, regulate the
value thereof, and of foreign coin, and fix the standard of weights and
measures;
To provide for the punishment
of counterfeiting the securities and current coin of the United States;
To establish post offices
and post roads;
To promote the progress of
science and useful arts, by securing for limited times to authors and inventors
the exclusive right to their respective writings and discoveries;
To constitute tribunals inferior
to the Supreme Court;
To define and punish piracies
and felonies committed on the high seas, and offenses against the law of
nations;
To declare war, grant letters
of marque and reprisal, and make rules concerning captures on land and
water;
To raise and support armies,
but no appropriation of money to that use shall be for a longer term than
two years;
To provide and maintain a
navy;
To make rules for the government
and regulation of the land and naval forces;
To provide for calling forth
the militia to execute the laws of the union, suppress insurrections and
repel invasions;
To provide for organizing,
arming, and disciplining, the militia, and for governing such part of them
as may be employed in the service of the United States, reserving to the
states respectively, the appointment of the officers, and the authority
of training the militia according to the discipline prescribed by Congress;
To exercise exclusive legislation
in all cases whatsoever, over such District (not exceeding ten miles square)
as may, by cession of particular states, and the acceptance of Congress,
become the seat of the government of the United States, and to exercise
like authority over all places purchased by the consent of the legislature
of the state in which the same shall be, for the erection of forts, magazines,
arsenals, dockyards, and other needful buildings;--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.
A look at the term "general
welfare"
Changes in the meaning
of the term general welfare:
Definition of general
welfare from the 1828 Webster’s Dictionary:
Exemption from any unusual
evil or calamity; the enjoyment of peace and prosperity, or the ordinary
blessings of society and civil government.
Definition of general
welfare as currently used:
Aid in the form of money
or necessities for those in need; an agency or program through which such
aid is distributed.
Writings of founders:
James Madison, writing
on the meaning of general welfare in Article 1, Section 8, makes clear
(see below) that the term general welfare can only apply to those things
itemized under the general welfare phrase, which are in the same sentence.
As Madison said below, "their stooping to such a misconstruction" is proof
of how hard someone might work to twist the meaning of this sentence to
suit their desires. Does not Madison's term "stooping to such a misconstruction"
fit our present members of Congress who misuse the term general welfare
by applying it to things beyond what was clearly and specifically listed
with that phase by Madison and the other framers?
Excerpt from Federalist Paper
No. 41, written by James Madison, January 19, 1788
Some, who have not denied
the necessity of the power of taxation, have grounded a very fierce attack
against the Constitution, on the language in which it is defined. It has
been urged and echoed, that the power "to lay and collect taxes, duties,
imposts, and excises, to pay the debts, and provide for the common defense
and general welfare of the United States," amounts to an unlimited commission
to exercise every power which may be alleged to be necessary for the common
defense or general welfare. No stronger proof could be given of the distress
under which these writers labor for objections, than their stooping to
such a misconstruction.
Had no other enumeration
or definition of the powers of the Congress been found in the Constitution,
than the general expressions just cited, the authors of the objection might
have had some color for it; though it would have been difficult to find
a reason for so awkward a form of describing an authority to legislate
in all possible cases. A power to destroy the freedom of the press, the
trial by jury, or even to regulate the course of descents, or the forms
of conveyances, must be very singularly expressed by the terms "to raise
money for the general welfare.
"But what color can the objection
have, when a specification of the objects alluded to by these general terms
immediately follows, and is not even separated by a longer pause than a
semicolon? If the different parts of the same instrument ought to be so
expounded, as to give meaning to every part which will bear it, shall one
part of the same sentence be excluded altogether from a share in the meaning;
and shall the more doubtful and indefinite terms be retained in their full
extent, and the clear and precise expressions be denied any signification
whatsoever? For what purpose could the enumeration of particular powers
be inserted, if these and all others were meant to be included in the preceding
general power? Nothing is more natural nor common than first to use a general
phrase, and then to explain and qualify it by a recital of particulars.
But the idea of an enumeration of particulars which neither explain nor
qualify the general meaning, and can have no other effect than to confound
and mislead, is an absurdity, which, as we are reduced to the dilemma of
charging either on the authors of the objection or on the authors of the
Constitution, we must take the liberty of supposing, had not its origin
with the latter.
The objection here is the
more extraordinary, as it appears that the language used by the convention
is a copy from the articles of Confederation. The objects of the Union
among the States, as described in article third, are "their common defense,
security of their liberties, and mutual and general welfare. " The terms
of article eighth are still more identical: "All charges of war and all
other expenses that shall be incurred for the common defense or general
welfare, and allowed by the United States in Congress, shall be defrayed
out of a common treasury," etc. A similar language again occurs in article
ninth. Construe either of these articles by the rules which would justify
the construction put on the new Constitution, and they vest in the existing
Congress a power to legislate in all cases whatsoever. But what would have
been thought of that assembly, if, attaching themselves to these general
expressions, and disregarding the specifications which ascertain and limit
their import, they had exercised an unlimited power of providing for the
common defense and general welfare? I appeal to the objectors themselves,
whether they would in that case have employed the same reasoning in justification
of Congress as they now make use of against the convention. How difficult
it is for error to escape its own condemnation!
Other Madison writings on
the term general welfare as used in Article 1, Section 8:
"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, subject to particular exceptions." (James
Madison, Letter to Edmund Pendleton, January 21, 1792 Madison 1865, I,
page 546)
"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." --James
Madison, Letter to James Robertson, April 20, 1831?
Thomas Jefferson on the term
general welfare as used in Article 1, Section 8:
"Congress has not unlimited
powers to provide for the general welfare, but only those specifically
enumerated." - Thomas Jefferson
A look at the term Commerce
Clause
As stated by Madison
below, the purpose of the Commerce clause, with regard to interstate commerce
was to prevent a state from imposing import and export fees on products
that passed through that state. There is no mention of the federal
government regulating any product or service that crosses a state line.
Excerpt from Federalist
Paper No. 42, written by James Madison, January 22, 1788
The powers included in the
THIRD class are those which provide for the harmony and proper intercourse
among the States.
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 tranquillity.
A look at the Bill of Rights
From the preamble
to the Bill of Rights, we read:
THE Conventions of a number
of the States having at the time of their adopting the Constitution, expressed
a desire, in order to prevent misconstruction or abuse of its powers, that
further declaratory and restrictive clauses should be added: And as extending
the ground of public confidence in the Government, will best insure the
beneficent ends of its institution
RESOLVED by the Senate and
House of Representatives of the United States of America, in Congress assembled,
two thirds of both Houses concurring, that the following Articles be proposed
to the Legislatures of the several States, as Amendments to the Constitution
of the United States, all or any of which Articles, when ratified by three
fourths of the said Legislatures, to be valid to all intents and purposes,
as part of the said Constitution; viz.:
ARTICLES in addition to,
and Amendment of the Constitution of the United States of America, proposed
by Congress, and ratified by the Legislatures of the several States, pursuant
to the fifth Article of the original Constitution.
Clearly the Americans of
the late 18th century were well that there would be attempts
misconstrue the Constitution and thus they demanded the inclusion of ten
amendments called the Bill of Rights, with the Tenth Amendment being an
amendment clearly restricting the role of the federal government to only
those things specifically enumerated in the Constitution. Recent
decades have shown the wisdom of that amendment as we have seen failure
after failure and a compounding load of dept when the federal government
steps into areas not among those specifically enumerated.
Amendment X - Rights Reserved
to States (1791)
The powers not delegated
to the United States by the Constitution, nor prohibited by it to the states,
are reserved to the states respectively, or to the people.
Representative James Madison,
1794:
House of Representatives,
January 10, 1794. Mr. Madison remarked, that the government of the
United States is a definite government, confined to specified objects.
It is not like the state governments whose powers are more general. …"
Back to the original question
The above information and
analysis is why I have challenged the constitutionality of the healthcare
legislation which has now passed the U.S. Senate and House of Representatives
with the support of both of our U.S. Senators and Congressman Welch.
To date, the responses have
been: first ignore the question, then when I continued to press for an
answer Article 1, Section 8 of the Constitution was sighted, yet with no
real explanation, and then the latest response of dumping the responsibility
to uphold the constitution off to the Court. This just is not at all acceptable!
All Vermonters deserve a straight forward rigorously thought out answer
to this most reasonable and fundamental question. Congressman and Senators:
I am not simply asking your opinion on the constitutionality of the bills
you voted for, nor will I accept your notion that determining constitutionality
is any less your job than it is the job of the Court. I am asking
you to show me and the rest of Vermont how in light of what the founders
wrote (above) do you contend that the bills you voted are within the bounds
of our nation's Constitution?
Editor’s Note: This
article first appeared on the Shepard for Congress 2006 web site here:
http://www.shepardforcongress.org/welch_letter_2010.htm
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