There is much rumbling about the constitutionality of what Congress is now doing to legislate health care “reform”.  Those who think the Constitution is a “living document”, subject to the whims of whoever manages to buy the most votes, and therefore argue that health care in this country is a “right” are, however, sadly off the mark.  In fact, my not-so-humble opinion is that they can be described as traitors for their subversion of the Constitution and the perpetuating of such a myth is itself treason, but that is a discussion for another day.

Right now, what concerns me is the intention of the Founding Fathers and nowhere are they stated more clearly than in the Declaration of Independence.  It is the single most critical document to be considered for it is the very reason that United States exists.

The Declaration states:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

There is great hypocrisy in liberal arguments that focus on the literal in the health care debate yet deliberately ignore the literal in these two simple statements.  It is quite clear that equality was considered crucial and key by the Founders.  By definition (all courtesy of Merriam-Webster), equality means of the same measure, quantity, amount, or number as another; it means identical in mathematical value or logical denotation.  It does not mean, by modern Democratic parlance translated into legislation, that some are more equal than others.  Yet Congress and the federal government consistently hold themselves apart from the people and earmarks, particularly those handed out by Senator Reid to get his 60 votes for the Senate bill, are a blatant disregard of the definition, for by giving more to some they then give less to others (in itself a violation of Article 1, Sections 8 and 9 of the Constitution but that will be addressed further down).

So if you can understand and accept the fact that by simple definition we all stand as equals, then what follows is that every equal one of us has certain “inalienable Rights”.  An “inalienable Right” is one that is incapable of being withdrawn or diverted, surrendered, or transferred.  Meaning, it’s yours; you own it without having to buy it, and no can force you to sell it.  It is something that no one may ever take away from you, now and forever, amen.

These inalienable Rights are Life, Liberty, and the Pursuit of Happiness.  We have discussed them here before but in terms of the health care debate, they translate thusly:

1.)  Life:  The inalienable Right to Life means that no one is allowed to take yours away from you.  Not now, and not even before you are born (except by specific and narrow definition that we will adress when we get to Happiness).  The bottom line is that you – the individual – by the very grace of God (or Buddha or the Great Pumpkin or whatever have you since all religious beliefs or the lack thereof are also equal) have the right to be alive.  Period.

2.)  Liberty:  The inalienable Right to Liberty means that when you exist, you are free.  But what exactly is “free”?  It means that you not subject to the control or domination of another, you are not determined by anything beyond your own nature or being; you are capable of choosing for yourself,  not hampered or restricted or confined.  You may decide how and what you think and say, how you wish to live, where you wish to live while you think and speak, how you care for yourself and/or for others.  The examples go on and on but this one small word is the centerpoint upon which everything in this country is balanced.  Liberty is, by definition, dependent upon freedom.  It is  the power to do as one pleases, the freedom from physical restraint, the freedom from arbitrary or despotic control, the positive enjoyment of various social, political, or economic rights and privileges; liberty is the power of choice.

Let’s look at that last definition a little more closely.  You have the power of choice.  You have the inalienable RIGHT TO CHOOSE.  It is your right to look at the options available to you and to choose what makes the most sense to you based on your own individual circumstances.  But in the matter of abortion, doesn’t this conflict with the Right to Life?  Glad you asked.  The inalienable Right to life and the inalienable Right to liberty are equal rights, neither one takes precedence over the other but they are also equal to the third inalienable right and it is there that the balance point for this and other matters may be found.

3.)  Pursuit of Happiness:  This is the inalienable right to follow your heart, to go after those things that for you, the individual, bring a state of well-being and contentment.  If it makes you happy to dye your hair blue or cover every inch of your body with swastika tattoos, if it makes you happy to invent the next best thing after sliced bread and thereby make a fortune, if it makes you happy to spend that fortune on stuff or to give it all away, you have the inalienable right to do these things.  In terms of health care, if drinking yourself into a stupor every night makes you happy or smoking or eating nothing but McDonald’s french fries or any other thing that medicine tells us may have a negative impact on health, it is still your inalienable right to do them.  I know it may be hard to believe this since the federal government has decided it is in your best interests to legislate your ability to pursue your choices of what science deems as “unhealthy” but the reality of the Republic of these United States of America is that such legislation was never and is not now really within their powers.  I would argue that to “provide for the general Welfare” means simply insuring that science is allowed to operate freely and its results then made available to everyone; it is the States, made up of the people in each of them who then decide what, if anything, should be done based on whether they choose to believe those results or not.

May it be noted for the record that the inalienable Right to pursue your own individual happiness does not mean that you are guaranteed to get it.  This Right is only about opportunity, it is the inalienable Right to life and liberty with a hefty sprinkle of fate that affects results.  In the health care debate over abortion, the balance between the inalienable Right to life, liberty, and happiness is found in the ruling in Roe v. Wade and in the Hyde amendment.  These two things allow the individual to make the decision and the freedom to pursue it yet prevent individual choice from negatively impacting any individual who would choose differently.

And that is exactly the sort of balance that is meant by the saying, “Your rights end where mine begin”.  You may have the inalienable Right to choose but because everyone is equal and therefore has exactly that same Right, you may not make a choice for which your consequences (intended or not) become the consequences of someone else who did not make your same choice.

Surely, all of this balancing ’tis a delicate act to accomplish, yet by granting limited powers to the federal government, the Founding Fathers were very clear that individual freedom is paramount.  James Madison addressed the “general welfare” argument long before the Democrats decided that it means they can force Americans to do whatever it is they think best by making regulations and laws and using the IRS as their means to enforce compliance.  In Federalist Paper 41, he explains the enumerated powers of the Constitution (highlights mine):

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.

Let me translate this into contemporary English.  Madison says that those who argue that the federal government can do anything, in this case health care, because it affects the “general welfare of the United States” are idiots.  He says they are making up their facts by deliberately misunderstanding what is in the Constitution and how it is written.

He explains that the first sentence in Article 1, Section 8 is not a stand-alone statement.  The sentence was not written as:  “The Congress shall have 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; but all Duties, Imposts and Excises shall be uniform throughout the United States.”  It was written as:  The Congress shall have 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; but all Duties, Imposts and Excises shall be uniform throughout the United States;” and herein lies the meat of his explanation.  The difference in the two sentences I have just typed is that the first one ends in a period and the second one ends in a semicolon.  And, as in all proper writing, which should be well-understood by all those “best and brightest” Ivy League types scuttling around Washington, punctuation matters.  Madison then calls out those who deliberately ignore the meaning of the Article’s punctuation.  He explains that the opening sentence of Article 1, Section 8 is a general phrase that is explained in full – qualified – by what then follows after that all-important little semicolon.  To suppose that the Founders meant anything more or less than what they put down in writing in that section is “an absurdity”.  For the sake of those who may not have ever read them, according to the Constitution then, these and these alone are the powers that the Founding Fathers saw as belonging to the federal government:

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 an 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, dock-Yards, 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.

And just in case Madison had not fully and successfully won the argument that the laundry list contained in Article 1, Section 8  is the sum total of the power granted by the Constitution to the federal government, the Founding Fathers included Amendment 9 in the Bill of Rights:

Amendment 9 – Construction of Constitution. Ratified 12/15/1791.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

I don’t know about you, Sunshine, but I don’t see health care included in this list.  And it wasn’t because there wasn’t any medical care in the 18th century, either, because even though doctors actually killed more people than they saved, medicine was already a long-recognized profession. One of the signers of the Declaration of Independence, Dr. Benjamin Rush, put forth this argument at the Constitutional Convention: 

“The Constitution of this Republic should make special provision for medical freedom. To restrict the art of healing to one class will constitute the Bastille of medical science. All such laws are un-American and despotic.” 

“Unless we put medical freedom into the constitution the time will come when medicine will organize into an undercover dictatorship and force people who wish doctors and treatment of their own choice to submit to only what the dictating outfit offers.”

That is as close to a mention of health care as you’ll find, though the good doctor addresses only the individual freedom of his fellow doctors to practice their art.  That we find no such special interests included in the final version of the Constitution is because the Founding Fathers understood that things like health care are the sole purview of the individual and that our inalienable Rights already covered matters like choice of profession.  His words are prophetically ironic, though, and Dr. Rush is quite likely spinning in his grave over the contents of the House and Senate health care legislation since both create exactly the situation he feared would happen to the American people.  I can only imagine his angst, as one willing to die for our inalienable rights, that it comes directly from the hands of the federal government.