Health Care and the Supremacy Clause

    "State governments are pushing back reasserting federalism as the Founders intended them to do," said the Attorney General of Virginia, Ken Cuccinelli."Virginia was the first state to argue in federal court that the new health car law is unconstitutional.....[A] legal expert said our case relied on a 'controversial reading of the Constitution.' Apparently it is controversial to apply the Constitution as it was written." [1] 

    The Constitutional Accountability Center [CAC], which believes in a 'Progressive Constitution', said in its blog that this push-back whereby States' "claims that federal health care reform violates the Constitution’s 10th Amendment and 'states’ rights' rely on an inaccurate view of the federal government as a weak, sharply limited central government."[2]
 
    To view the federal government as anything but a "sharply limited central government" may not stand up against court precedent. But precedent is not what is paramount here, because precedent is nothing but interpretations by judges who may discount original expected application, and who obviously were not there to comprehend from a first-person memory what the application was supposed to be. At the start of the current Congress, Justice Antonin Scalia reminded the House Republicans to read and understand the Federalist Papers.

    Original "meaning" refers in most recent writings to the meaning of the words as they were used when the Constitution was written; but meanings of words change. Where we say "judge", people in the 18th century often said "jurist", but to us in this century a "jurist" is taken to be someone who sits in the jury box. It isn't the meaning of the words as we understand them that is important; but that is what progressive readers of the Constitution use--their own understanding of the words as they wish them to be used today.

    "Evidence of how people used words at a certain point in time is evidence of their original public meaning, but it is not conclusive evidence, because original public use conflates both the content of a concept and its expected application."[3]

    As I wrote on April 29, Tibor Machan, referring to another author, said this is "stating conventional wisdom in the 'post-New Deal era'" of constitutional jurisprudence.  "The way this is made palatable," he wrote, "is to associate the pre-New Deal constitutional jurisprudence--substantive due process and such--with rulings that failed to overturn segregation, etc."[4]

    But there is also more going on here. "[I]n circumstances in which a national approach is necessary or preferable," the CAC continues, "the Constitution’s Supremacy Clause gives the federal government the authority to enforce these lines of authority, preempting state law when necessary to achieve a national goal."

    Who determines when a "national approach" is "preferable" if it is not the States? It is circular thinking to say that, when the federal government was created by the States to serve them, that that servant should then decide when it may preempt the very States' laws they use under the powers of the Constitution as each State sees fit. Who determines a "national goal" if not the nation made of sovereign States who protect sovereign individuals?

    This arrogance in 'preempting state law when necessary' is created by "the 'illusion' [that] the heart of Jeffersonian government is just American individualism!....Individual sovereignty was not a peculiar conceit of Thomas Jefferson: It was the common assumption of the day...."[5]

    Indeed. Much of the Tea Party is founded or supported by libertarians and independents, who were inspired by the ideas of Ayn Rand, who echoed the Founders:

    "Individualism regards man—every man—as an independent, sovereign entity who possesses an inalienable right to his own life, a right derived from his nature as a rational being. Individualism holds that a civilized society, or any form of association, cooperation or peaceful coexistence among men, can be achieved only on the basis of the recognition of individual rights—and that a group, as such, has no rights other than the individual rights of its members."[6]


    The Supremacy Clause says, in part that "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof....shall be the supreme Law of the Land...." But it says nothing about laws made in pursuance of the Constitution being lawful just because a particular group of individuals who have gained supremacy says every law they deign to write is "necessary to achieve a national goal."

    It is only necessary to achieve their goals that they have their sights set on a 'progressive Constitution' that allows for the use of modern definitions of 18th century words, rather than 21st century interpretations of original expected application.

    But it is my opinion that the Tea Party often does little better, or none at all, or perhaps worse at time--when it decides to stand up for a perceived principle that is no principle at all. A perfect example is the call for 'smaller government' through limited budgets, rather than limited budgets through original Constitutional intent. Fiscal conservatism is not necessarily Constitutionalism.

    I have always said that the government must as large as it must be, and only as large as is Constitutional. The Framers didn't want a standing army; but those were there original "meanings"; their expected application was never to allow our nation to be exposed to the kinds of world-wide threats the kinds of which they had no conception.

    Health care, on the other hand, ought to be handled by anyone with the authority to do so, and the Supremacy Clause does not allow for the federal government to do so.

[1] April 21, 2011 lecture sponsored by Hillsdale College's Kirby Center for Constitutional Studies and Citizenship in Washington, D.C. Imprimis; April 2011 Volume 40, Number 4
[2] CAC July 27, 2010 
[3] Jack Balkin; Balkinization
[4] Tibor Machan
[5] Kelly R. Ross
[6] The Ayn Rand Lexicon; The Virtue of Selfishness

© Curtis Edward Clark 2011

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States' Rights and The 'Slow Rot' Principle

     Has the Ninth Amendment had little effect in the courts? It has certainly not had the power of a 'rule of construction', as James Madison said it was.
     The enlargement of federal powers in the previous century were able to be accomplished because the Tenth Amendment "does not prevent expansive interpretations of enumerated federal powers...render[ing] meaningless
the Tenth's reservation of powers to the states "[1]

     "Thus statism was to come," wrote Ayn Rand, "not by vote or by violence, but by slow rot—by a long process of evasion and epistemological corruption..."

     Critics of the loss of the federalism model claim the Tenth Amendment merely says the States retain all powers not ceded to the Federal government; and because of Rand's "slow rot" principle, those 'expansive interpretations'. Very recently discovered historical documentation show that the Ninth and Tenth Amendments were intended to work together so that "the Ninth prohibited interpretations of enumerated power that disparaged those states’ rights."[2]
     Well, how was this connection between the two Amendments supposed to work? (And why has this scholarship been ignored until now?) States that had demanded the relationship, like Virginia, held up ratification of the Bill of Rights for two years because they didn't think the Ninth was adequate to the job. But James Madison convinced them it was, in a speech to Congress opposing the National Bank (Feb. 2, 1791).
     "Madison's draft of the Ninth Amendment," wrote Kurt T. Lash in this new documentation called The Lost Original Meaning of the Ninth Amendment, "contained a rule of interpretation expressly limiting the constructive enlargement of federal power." Madison himself is said to have expressly stated that the altered version found in the Bill. "Madison's speech removed any ambiguity regarding his understanding of the Ninth Amendment, and the Virginia Assembly was entitled to rely on Madison's description of the Ninth when, only a few months later, it ratified the Bill of Rights."[1]
     Originalism pertains to the historical documents left behind by the Founders as to what they perceived to be the meaning of their words. See March 8 TPO Because it was Madison who wrote the original wording of the Ninth Amendment, and then convinced other Founders of its meaning, upon which they then ratified the Bill, it is Madison's words we must take into account.
     There is a world of difference between "original meaning" and "original intent". I will discuss that in the next blog.

     



[1] Texas Law Review [Vol. 83:331] 336
[2] Univ. of Pennsylvania Law Review

© Curtis Edward Clark 2011
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