Single-Payer and the Constitution
Is national health insurance Constitutional? It's an issue we supporters of single-payer need to take seriously because our opponents will almost certainly argue that it is not in an attempt to prevent passage and will also challenge the Medicare for All Act on constitutional grounds when it becomes law.
Nowhere in the Constitution or Bill of Rights is a right to healthcare specified. Seventy-three years ago, President Franklin Delano Roosevelt proposed what he called a "Second Bill of Rights" that would have guaranteed: "The right to adequate medical care and the opportunity to achieve and enjoy good health" among other economic rights. But Roosevelt did not seek to amend the Constitution, his intention was to work with Congress for its implementation though the legislative process. Roosevelt died before he was able pursue the idea further and it was largely forgotten, although there has been a resurgence of interest in the Second Bill of Rights in recent years. Legal scholar Cass Sunstein has also argued that the Supreme Court was effectively implementing parts of the Second Bill of Rights though case law holdings, particularly in the areas of education and welfare benefits, until its composition began to become more conservative in the 70s and 80s (see: The Second Bill of Rights: FDR's Unfinished Revolution and Why We Need It More Than Ever).
However, since 1946 the United States has signed at least six treaties and international declarations recognizing a right to healthcare in whole or in part. Two of the treaties were signed and ratified, which means that under Article VI, Section 2 of the Constitution they are the "supreme law of the land", two others were signed but never ratified and the remaining two were declarations that while signed are not considered to be legally binding. The first of these is the World Health Organization Constitution ratified on June 14, 1948 which states in relevant part:
"Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity. The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition...Governments have a responsibility for the health of their peoples which can be fulfilled only by the provision of adequate health and social measures."
The second is the International Convention on the Elimination of All Forms of Racial Discrimination, ratified on October 21, 1994:
"In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, color, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights...The right to public health, medical care, social security and social services."
The third is the International Covenant on Economic, Social, and Cultural Rights, signed by President Carter on October 5, 1977:
"Article 12
1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:
(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;
(b) The improvement of all aspects of environmental and industrial hygiene;
(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;
(d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness."
The fourth is the Convention on the Rights of the Child, signed by UN Ambassador Madeleine Albright on behalf of President Clinton on February 16, 1995:
"Article 24
1. States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.
2. States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures:
(a) To diminish infant and child mortality;
(b) To ensure the provision of necessary medical assistance and health care to all children with emphasis on the development of primary health care."
The fifth is the UN Universal Declaration of Human Rights, signed by the United States on December 10, 1948:
"Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services."
And, finally, World Health Assembly Resolution 58.33, passed on May 25, 2005:
"Recognizing the important role of State legislative and executive bodies in further reform of health-financing systems with a view to achieving universal coverage,
1. URGES Member States:
(1) to ensure that health-financing systems include a method for prepayment of financial contributions for health care, with a view to sharing risk among the population and avoiding catastrophic health-care expenditure and impoverishment of individuals as a result of seeking care;
(2) to ensure adequate and equitable distribution of good-quality health care infrastructures and human resources for health so that the insurees will receive equitable and good-quality health services according to the benefits package;
(3) to ensure that external funds for specific health programs or activities are managed and organized in a way that contributes to the development of sustainable financing mechanisms for the health system as a whole;
(4) to plan the transition to universal coverage of their citizens so as to contribute to meeting the needs of the population for health care and improving its quality, to reducing poverty, to attaining internationally agreed development goals, including those contained in the United Nations Millennium Declaration, and to achieving health for all;" (http://healthcare.procon.org/view.resource.php?resourceID=005996)
Opponents of national health insurance will probably not raise the white flag here. They will instead likely point out that Article VI, Section 2 also says that treaties must be made pursuant to the Constitution, "under the authority of the United States." They will further argue that Congress does not have the authority to make treaties such as those listed above, that its powers are restricted to those enumerated in Article I, Section 8, which clearly does not include providing healthcare or health insurance. But are they right, is it really that simple?
The preamble to the Constitution states that one of its purposes is to "promote the general welfare." The phrase makes an appearance again at the very beginning of Article I, Section 8, where it states that Congress has the "power to lay and collect taxes" in order to "provide for the general welfare of the United States." Is this just mere rhetorical flourish or does it have real meaning and what is its proper meaning?
Debate over this has been going on nearly as long as the Constitution has existed. In an 1831 letter, James Madison, the so-called "Father of the Constitution," wrote that the clause authorized Congress to spend money, but only to carry out and duties specifically enumerated in the subsequent clauses of Article I, Section 8, and elsewhere in the Constitution, not to meet the seemingly infinite needs of the general welfare. But Alexander Hamilton, Madison's close ally in the fight for ratification of the Constitution and co-author of most of the Federalist Papers, believed to the contrary that the clause was separate, standing on its own, and that it granted Congress the power to spend without limitation for the general welfare of the nation. Today, conservatives have seized on Madison's statement as support for their efforts to eliminate the federal government's role in a number of areas, including healthcare. But why is Madison's opinion any more authoritative or binding than that of Hamilton? Furthermore, Madison himself sometimes applied a more liberal interpretation of the Constitution. Though he opposed the first bank of the United States on constitutional grounds, he signed the second into law as president in 1816 because he felt that by its acceptance of the first bank, the nation had "put a construction on the Constitution, which having made it, had the supreme right to declare its meaning. (see http://press-pubs.uchicago.edu/founders/documents/a1_8_1s21.html and https://www.americanprogress.org/issues/courts/reports/2011/05/27/9610/t...)
Over a hundred years later, a majority of the Supreme Court vindicated Hamilton's view in the case of United States v. Butler (297 U.S. 1 1936). Though the court struck down key provisions of the Agricultural Adjustment Act of 1933 as being an unconstitutional exercise of Congress's regulatory power, it also held that Congress has broad authority to tax and spend for the general welfare and is not limited by the powers specifically enumerated in Article I, Section 8. In Butler the court specifically re-examined the conflicting views of Hamilton and Madison regarding the general welfare clause of Article I and also took note of the pro-Hamiltonian opinion of Associate Justice Joseph Story (1779-1845), who's Commentaries on the Constitution of the United States were a cornerstone of 19th century jurisprudence and remain a critical source of historical information about the nascent American republic and the early struggles to define its law. In the Butler court's own words: "Study of all these leads us to conclude that the reading [of Article I, Section 8] advocated by Justice Story is the correct one." (https://scholar.google.com/scholar_case?case=1427345954995665703&q=unite...(1936)&hl=en&as_sdt=6,33&as_vis=1, I am also indebted to jamess' America's Misunderstood Mission: Promoting the General Welfare, https://www.dailykos.com/stories/2014/11/2/1340978/-America-s-Misunderst...)
More recently, though no mention was made of Butler, in the case of National Federation of Independent Businesses v. Sebelius (567 U.S. 519 2012) a majority of the Supreme Court agreed that the Affordable Care Act's individual mandate to buy health insurance was a constitutional exercise of Congress's power to tax.
The Expanded and Improved Medicare for All Act would be funded by; 1) existing sources of government revenue for healthcare; 2) by increasing personal income taxes on the top 5% of income earners; 3) by instituting a progressive excise tax on payroll and self-employment income; 4) instituting a tax on unearned income [interest and capital gains]; and 5) instituting a tax on stock and bond transactions. In return, expenses for premiums, co-pays, deductibles and numerous unnecessary expenses on businesses, in terms of both time and money, go away. The Act is clearly an example of Congress using its power to tax and spend for the general welfare and as such it stands on strong constitutional ground. Finally, the fact that the United States has signed and ratified treaties recognizing a right to healthcare means that, in the words of Madison, we, the people, have "put the construction on the Constitution" and exercised our supreme right to join the rest of the civilized world and enact a national health insurance program.
Comments
You're right. It is an important question, and
it is an argument that the opposition will make. Do you know if anyone is looking at this? Is it premature? I would think offense and defense being worked on together would be criticial.
"Religion is what keeps the poor from murdering the rich."--Napoleon
A very nice summary
Treaties are seldom if ever followed by our government. We just use them to pound 'adversaries' with fake 'righteous rage' in gotcha moments.
Good thing Republicans loves them for profit Healthcare. That keeps the 'Commerce Clause' firmly in place.
I want a Pony!
Politicians are just priests in cheap suits.
What this is up against is not the constitution, but rather Washington Dogma.
Washington Dogma states that healthcare will always be the responsibility of the individual.
(Reagan, Chapter 5, Verse 11)
I do not pretend I know what I do not know.
responsibility
And, in this case, the term "responsibility" really is synonymous with "blame" !!
"US govt/military = bad. Russian govt/military = bad. Any politician wanting power = bad. Anyone wielding power = bad." --Shahryar
"All power corrupts absolutely!" -- thanatokephaloides
Teddy Roosevelt and his cousin, Franklin, Lyndon B. Johnson,
Richard M. Nixon, James E. Carter, William J. Clinton, Barack H. Obama and even Bush the Lesser (Medicare Part D) said otherwise, as did Teddy Kennedy and other legislators who have passed many health care and health-related research bills. State legislatures and governors, too (Vermontcare and cough, Romneycare, cough).
No clue what St. Ronnie said, but his beloved Nance sure came to believe that Alzheimer's (if not AIDS) was an issue for the federal government.
P.S. Cheap suits? Have you ever seen Charlie Rangel, among many others, in a cheap suit? If pols would settle for cheap suits--or cheap anything--ordinary citizens might have a shot at actually being represented.
I prefer the term Cheap Whores
The pitifully small amounts of money they take as
bribescampaign contributions compared to the billions they give to the corporations that paid thosebribescampaign contributions...Of course the real money comes in the form of insider trading...
" In the beginning, the universe was created. This has made a lot of people very angry, and is generally considered to have been a bad move. -- Douglas Adams, The Hitch Hiker's Guide to the Galaxy "
Boris, in response to part of your astute comment
It is my belief that our pseudo-representatives ought not to be so shamefully remunerated but instead receive a proportional recompense based on the monetary value of the services they provide to their donors, er, recipients of legislative largesse. I believe that a more suitable method would be to award a kickback of say 10% of the financial windfall that is bestowed upon their donors, er, recipients of beneficial proposals. This is only just. I await both political crime syndicates, er, parties, to latch upon this proposal with all seriousness and provide the enabling legislation to rectify this gross imbalance between favors done, and benefits received. s/
@Alligator Ed
Hey, if they were worth it, they'd be earning that much already in the free market bribery department! (Nice to turn that back on the silly jerks.)
Psychopathy is not a political position, whether labeled 'conservatism', 'centrism' or 'left'.
A tin labeled 'coffee' may be a can of worms or pathology identified by a lack of empathy/willingness to harm others to achieve personal desires.
Pre-ALEC reformation church dogma
under the new unified corporate catholic constitution, it's made very clear what the proper attitude is. Please see your media confessor for the proper penance.
And price does not equal value. They're also tacky suits as well.
I do not pretend I know what I do not know.
Dear DMW, as a high official in the Pastafarian Religion,
I proclaim Church dogma requires your penance include 10 Pasta, no-stir and 13 Hail Marinara, full of paste. Plus of course the usual after-tax tithe of 10% of your income.
Only in this way will the expurgation of evil thoughts be cleansed from your sinner brain.
@Alligator Ed
I don't care how much penance DWS does; I am not sharing a table with her at the beer volcano or any of my male strippers!
Psychopathy is not a political position, whether labeled 'conservatism', 'centrism' or 'left'.
A tin labeled 'coffee' may be a can of worms or pathology identified by a lack of empathy/willingness to harm others to achieve personal desires.
@detroitmechworks
Indeed! Look at Potholder Hillary! And she was known to have been charging clothing to 'campaign costs'... shoulda been 'wealthy-restricted-fundraiser wooing costs', come to that.
Edited for a missed word; coffee's moving sloooooowly to that remaining brain cell, wherever the hell it's got to now... and re-edited for a missed letter - now wondering if I forgot to pack that brain cell, or if it's one of the things yet to arrive from the house?
Psychopathy is not a political position, whether labeled 'conservatism', 'centrism' or 'left'.
A tin labeled 'coffee' may be a can of worms or pathology identified by a lack of empathy/willingness to harm others to achieve personal desires.
Really excellent historical overview of this question, RR.
The elephant in the room is that globally we are pretty much the lone holdout in offering its citizens a national healthcare plan administered by the government, instead of insurance corporations. Another fraud about American being the Greatest Country In the World™ and Free-dumb, for which many have been convinced comes with gun ownership and access to loads of cheap disposable goods made by slave labor in SE Asia to fill up our attics and garages with.
Great question. Thom Hartmann would talk about this a lot (when he was a more sane progressive more concerned about Wall St's hijacking of the gov't and the economy, rather than getting a putrid Neoliberal elected).
For the life of me, I can't see how this is not simply distilled into a matter of how the taxes we're all forced to pay shall be appropriated. Given the choice, would Americans like to see their taxes go towards a bloated military budget ("Audit Reveals the Pentagon Doesn’t Know Where $6.5 Trillion Dollars Has Gone") or giving billions of dollars in "subsidies" to oil companies and corporate America, or to having free healthcare?
This never gets broached in a no-nonsense way, because the MSM is totally feckless, craven and beholden to their advertisers and stockholders, who are often part of the same merged monopolies that have an interest in keeping this conversation from ever happening in a kitchen table way for the average American to easily understand. Most people have no clue to what the US government is both doing in their names and spending of their tax dollars. If people really understood just how screwed they've been there would be revolution.
The rest of the world has figured this out. Probably because they've endured much more bloodshed on their soil than we have and have taken a much more anti-military stance which allows them to have more for the "general welfare" of their citizens.
But there is reason to believe that these ideas were originally found in these documents at the start of the country. Thomas Paine talked about it often too, calling for a welfare state and social security, I believe ("Thomas Paine, Our Contemporary" by Chris Hedges)
Chris Hedges, Cornel West, and Richard Wolff "The Anatomy of a Revolution" at the Left Forum 2014
What happened to jamess? Was here for a while, during the Purge, but haven't seen him in a long time.
Truly great piece, Radical Reformer. Nice to have you here.
"If I should ever die, God forbid, let this be my epitaph:
THE ONLY PROOF HE NEEDED
FOR THE EXISTENCE OF GOD
WAS MUSIC"
- Kurt Vonnegut
I agree with you totally on "the general welfare." I wrote my
own reply to the essay to that effect before reading the other replies on this thread.)
On a tangent, though: Wasn't Thom Hartmann always among the many whose bottom line was "You must vote for the Democratic nominee because you can't/dasn't let the Republican nominee win?"
I think many seemed more liberal when Bush was in charge, whether it was the politicians themselves; the political pundits, strategists and commentators, like Franken, Maddow and Hartmann; message board posters; the folks next door or your bestie/sweetie. Democrats always seem to at least sound more liberal (a) when they are out of power; and (b) during Democratic primaries than they do when Democrats are running in the general or governing. But being (or seeming?) anti-Republican does not = liberal, as liberal posters learned after Obama was elected.
I don't even know if it matters if who is sincere or who is joining in playing this time-worn, predictable con game. Either way, it's about us, not them. And, for us, the results are equally crappy whether the ones participating in this long con us are sincere, but misguided, or merely cynical.
(Essays about these and related subjects have been in the back of my mind for a while.)
This deserves repetition
@HenryAWallace
And I devoutly hope you'll bring them all out front where the rest of us can see them, ASAP!
Psychopathy is not a political position, whether labeled 'conservatism', 'centrism' or 'left'.
A tin labeled 'coffee' may be a can of worms or pathology identified by a lack of empathy/willingness to harm others to achieve personal desires.
I think this comes under
"promote the general welfare" but IANAL.
"Please clap." -- Jeb Bush
Well, I'm no lawyer but I have some thoughts
So I'll just go ahead and be contrarian here. As much as I desperately want universal health coverage I have to admit that the Republicans have a point with "big government". More specifically, one of the things I note is that the bigger the government (local -> state -> federal) the less beholden to it's voters it is and the more corrupt it is. That makes sense when you think about it.
That line of thinking occurred to me when we moved to Canada and I noticed how different the government here was. I am convinced that while certainly substantial cultural issues play in that, there's also the size thing. That makes me think maybe the framers were on to something when they reserved powers to the states.
So in my fuzzy thinking I arrive at national health care being a mixed blessing. In fact, national anything is a mixed blessing. That makes me want to ask the question, "Whether or not it is legal, do I want it to be?"
A lot of wanderers in the U.S. political desert recognize that all the duopoly has to offer is a choice of mirages. Come, let us trudge towards empty expanse of sand #1, littered with the bleached bones of Deaniacs and Hope and Changers.
-- lotlizard
How have you been liking the Canadian version of
Medicare for All so far?
As an aside, I will note that, as usual, politicians of all stripes bs to degree that normal people like us can barely imagine. And Republicans have long seemed especially apt at coming up with catchy phrases like "War on (snort) Terror" or "big government" (perhaps reminiscent of the big, bad wolf?).
Republicans seem to have zero problem with massively big government spending insanely on wars, on the NSA and Homeland Insecurity and state and local law enforcement monitoring every email, phone call and surveillance camera video and more. The seem to have no porblem with almost unaccountable spending the FBI or CIA, even when they interfere in the internal affairs of other nations or spy on the extra-marital goings on of heads of state and other popular figures, foreign or American. Republicans seem to have no problem spending on militarizing state and local police, or on monitoring video and audio of radio and television programs to hunt for for double entendre and f words.
Until the Supreme Court put a stop to their massively big government intrusiveness inot purely private affairs (no pun intended--or avoided), Republicans seem to have had zero problem forcing sonograms on women seeking to exercise their constitutional right of choice or enforcing laws against people of the same gender or of mixed race doing nothing more than making love with each other. In fact, until the 1960s and 1970s, I believe laws against sodomy and against even---wait for it---education about contraceptives, applied even to married heterosexual couples.
My definition of "small government" is not one that is literally up in our individual asses and vaginas and TV sets and radios. So, it's not big government to which Republicans object. They are delighted with a big government that will enforce their extremely intrusive and often unconstitutional agendas. They just don't want government to give school kids in poor neighborhoods a free breakfast so they can hear the teacher above the growling of their stomachs or for government to fret over big business depriving the rest of us of our drinking water, sea life and air by dumping, spilling, unfettered burning, logging, etc.
As an another aside: the Bill of Rights, the ninth and tenth amendments of which expressly reserve power to the states and to the people were not the Framers' idea. Ratification of the body of the Constitution by the states as the Framers originally presented it was expressly conditioned on the addition of the Bill of Rights. As you no doubt know, most of our bill of rights of 1789 was patterned on rights that Evil King John granted nobles (or whomever) in 1215 C. E., about a half millennium before the Framers were born. The Framers, perhaps mindful that Americans had just overthrown one government, kept their word about the Bill of Rights.
The official story is that the Framers did not include things like the Bill of Rights because they thought it was implied that the federal government would have (and exercise) only very limited powers expressly granted by the Constitution and the rest was between the state legislature and the people. Given how much the Framers mistrusted the rabble, especially those with no land or money, I leave it to you whether to buy the official story, but I'm not sure I do.
Make no mistake
I'm loving Canadian health care and I'm well aware that Canada is... uh... not exactly stellar when compared to the other developed nations -- except of course the US.
My line of thinking is broader than that. Can ANY government of 350 million people actually work for those people? If not, does a more restricted view on federal government make sense? What's to stop whatever states that want to banding together to form their own health care provider?
I desperately want an actual health care system for the US. I'm just wondering what the most effective way to go about that is.
A lot of wanderers in the U.S. political desert recognize that all the duopoly has to offer is a choice of mirages. Come, let us trudge towards empty expanse of sand #1, littered with the bleached bones of Deaniacs and Hope and Changers.
-- lotlizard
Thanks for the clarification.
Seems to me your point is not about big government versus small government or Republicans versus any other party, but about state government versus federal government. I probably should not reply right now because I am feeling very pessimistic about posting, posters, politics and politicians. I'll do my best, though.
As to whether one government can satisfy all Americans, yes, I think it can, if it's honest, but that is a huge if. https://caucus99percent.com/comment/285042#comment-285042 Most people don't expect much from government and what they do desperately want from government these days is not very diverse.
However, a number of my posts point out that we think federal before we think state or local, where we might have a somewhat better shot at being heard. Emphasis on might.
As to health care, however, there are many problems with trying to address it at the state level or patchwork. 1. You have to keep down costs, which is harder for states than for the feds. 2. The feds suck all the money out of the states, then send it back for health care (and other purposes) on the terms the feds decide. For instance, Massachusetts, with its Romneycare, couldn't even get a waiver from Obamacare. 3. A moral issue: California, New York and some other affluent states might be able to afford Medicare for All with only a state program despite the feds sucking money out of the state; but what about people in the poorer states? Do we fight for them or do we get ours from our states if we can and let them twist in the wind?
My honest answer in my current pessimistic state? You don't want to know.
@SnappleBC
Just to mention, in Canada, general revenue money is sent by the federal government, and the way in which it's used for healthcare is determined by the provinces.
However, since NAFTA, the system has been starved for privatization and at this point, due to previous long-term NDP presence, (they degenerated drastically under a change of leadership and the direction taken, including the proposed dropping of social democratic ideals from their platform, lost them and us the Federal election in the country-wide strategic vote to get the Cons out) as far as I can tell, Manitoba is the closest one to the sort of system was initially planned - which situation will likely deteriorate far more rapidly now that the Conservatives have had a rather suspicious win in that province in the last election.
Harper would not have passed, shortly before the election, a(n illegal) law forbidding Elections Canada from informing the public of electoral fraud had he not been planning on using it and the traditionally corrupt Liberals are, in my opinion, a placeholder for the Koch brothers, et al, and their preferred psychopathic Cons, especially their creepy, sadistic, control-freak oil-country-boy Harper.
He'd actually gone to appeal to US business interests to help him get in, promising more destruction to the Canadian people, environment, society and country in general than anyone else would ever consider, and massive electoral cheating ensued, via American cheating experts and whatever other corporate aid. And once in, he naturally cut back on charitable deductions and increased tax-deductible political contributions, among everything else...
Massive corruption spreads rapidly to other countries, once government corruption allows self-interest to freely and thoroughly drain wealth and power from their own people in their home countries, enough to buy governments/political parties at home and abroad.
Psychopathy is not a political position, whether labeled 'conservatism', 'centrism' or 'left'.
A tin labeled 'coffee' may be a can of worms or pathology identified by a lack of empathy/willingness to harm others to achieve personal desires.
I certainly agree that Canada is in it's own pot of hot water
Neoliberalism is alive and well and Justin Trudeau is our Obama... he's a charismatic smooth talking neoliberal. As near as I can tell, Green is the only liberal party.
I peg Canada as about a decade behind the US in terms of systemic corruption. I wish we'd get off that path but I don't see many signs. Like Americans, Canadians as a whole are unaware of neoliberalism.
A lot of wanderers in the U.S. political desert recognize that all the duopoly has to offer is a choice of mirages. Come, let us trudge towards empty expanse of sand #1, littered with the bleached bones of Deaniacs and Hope and Changers.
-- lotlizard
the question
Then why is it that public owned and operated healthcare systems work so well in every other developed (and most developing) nation on Earth?
Reserving powers to the States is a good thing; don't get me wrong. But the architects of Medicare got this one right, in my humble opinion. And the evidence is in every other developed nation save the good ol' USA.
"The truth is out there"!
"US govt/military = bad. Russian govt/military = bad. Any politician wanting power = bad. Anyone wielding power = bad." --Shahryar
"All power corrupts absolutely!" -- thanatokephaloides
I don't see any need to look outside our own Constitution.
(For those who may not know: A right is not something we believe with all our hearts that all humans need and deserve. In our system, a right is only something expressly or implicitly given us by a law that we can sue in court to enforce, like we might sue for our express Constitutional right to free speech, if we are denied a parade permit. Then it becomes a matter of the court's interpretation.)
Of course, medical care is not a right under the Constitution of the United States. That is not how the COTUS works. The COTUS either empowers or limits government. Thus, the Constitution does not give you a right to free speech; it only prohibits government from depriving you of freedom of speech.
Medical care is also not a right under any federal law other than Obamacare, SCHIP, Medicaid, Medicare, etc., etc. (Medicare for All could be a right for everyone in your state under you state constitution and state law, but too many of us act as though state law is almost irrelevant.)
However, medical care for everyone's not being a right under existing federal law is not the end of the federal story. That the Constitution empowers federal government to provide for the general welfare has long been the law of this country--had to be in order for FDR to create, well, welfare. Though Republicans, Libertarians and others have whinged about the money, Medicaid for Many has not been a big Constitutional problem. Neither has Medicare for Many, SCHIP for Many, etc. I can't imagine why Medicare for All (or All not already covered by existing federal laws) would be a huge Constitutional problem.
Moreover, under the relatively new Justice Roberts' total bs clause of the Constitution, the federal government can do anything it wants with its taxing power, including taxing us extra unless we buy, even from private vendors, whatever the federal government says we must buy.
So, if there were any question about the general welfare clause--and I don't think there is--I'm sure something creative could be worked out with a Medicare premium and the taxing power, the way that the Obama administration worked out the individual mandate of Obamacare and the taxing power.
@HenryAWallace
And under the illegal 'trade deals' effectively handing over law from the people to myriad destructive self-interests in order to guarantee that the people of each country must maximize the profits of involved (and monopoly-seeking) corporations/billionaires, I suspect we'll find the ultimate purpose of that precedent... only hyper-priced shit sandwiches legally available, for as long as the people might live.
Psychopathy is not a political position, whether labeled 'conservatism', 'centrism' or 'left'.
A tin labeled 'coffee' may be a can of worms or pathology identified by a lack of empathy/willingness to harm others to achieve personal desires.
As far as recent mortality data in the US
hyper-priced shit sandwiches not only are non-nutritious but have a detrimental effect on US mortality which is declining in contrast to almost every industrialized country. China of course is the big exception besides us. They have air so thick, one can eat it. But also very non-nutritious.
@Alligator Ed
That's the 'cost of doing business' - paid by The People individually and the public generally - which increases profits for the health-care industry. Win/win, for Those Who Matter!
Make the corporate interests and their lackeys pay the real fiscal costs of their 'cost-cutting' profit-seeking and have them alone suffer all of the health-issues and see if they recognize that the costs far outweigh their profits when they have to suffer those costs themselves.
How is it 'legal' for a certain relative few to knowingly and maliciously/expediently drain, harm and kill millions of other unwitting/unwilling victims and the global life support system for bigger (stolen) personal profits and increased (stolen) power to harm and kill?
Psychopathy is not a political position, whether labeled 'conservatism', 'centrism' or 'left'.
A tin labeled 'coffee' may be a can of worms or pathology identified by a lack of empathy/willingness to harm others to achieve personal desires.
P.S.
1. FTR, only the two ratified treaties cited in your essay have legal force of any kind--and neither of them requires or approves anything specific, like Medicare for All. So, it's back whether the Constitution allows the federal government to pass Medicare for All, should the federal government voluntarily choose to pass it. Per my prior post and those of others on this thread, the answer is yes.
2. I personally don't recall whether Roberts' opinion about Obamacare mentioned the Butler decision or not, but it's irrelevant. The question in the Butler case was whether the Constitution empowered the federal government to spend for the general welfare. The SCOTUS (the pejoratively-named "court-packing plan" firmly in mind) said yes.
On the other hand, the questions in National Federation of Independent Business v. Sebeliuswere (a) whether the federal government could require individuals to purchase things from private vendors; and (b) whether the federal government could deny all federal Medicaid assistance to a state that chose not to participate in Obamacare's Medicaid expansion. Roberts and the four Democratic nominees said yes, under the taxing power to (a) and no, under no real legal authority, to (b)--and, IMO, were dead wrong on both counts. (Could have been a buy-partisan compromise?)
The questions raised in the 2015 case were very different from the question raised in the New Deal era case of Butler. Therefore, the SCOTUS did not need to cite, rely on, or overrule its Butler decision in order to decide the 2015 case, nor was it asked to do any of that. So, any failure to mention Butler is not meaningful.
FWIW, I can't imagine that any individual or unit of government with standing asking the SCOTUS to overrule Butler at this late date, nor do I think any SCOTUS would overrule it, if asked. If it did, I think everything from school lunches to Medicare for All could be justified under other Constitutional powers, like providing for the national defense. ((Hey, if a highway system is necessary for national defense, why not a well-educated, healthiest possible populace?)
3. I cannot help but wonder how much FDR's very liberal VP, Henry A. Wallace, had to do with the second bill of rights. (beams with totally unjustified pride, for no reason at all)
ETA: FWIW, a very quick google (Medicare for All constitutional?) , which I probably should have done before posting all my replies on this thread, turned up articles saying there is a consensus among the left and right that Medicare for All would be constitutional.
Jusr like original Medicare
If MFA is funded the same way and the premiums are voluntary like Part B, I don't know why dropping the age limit to zero would be any different legally. If you can't opt out, that might be a problem.
"regulating interstate commerce" is often used as a legal rationale.
Otherwise, outright nationalization ala UK would probably be unconstitutional. Doctors and facilities have to have the right to opt out, but only boutique and private doctors (like Michael Jackson's) have any reason too. Most doctors do not forgo so much business now and when 99% are covered ...
I've seen lots of changes. What doesn't change is people. Same old hairless apes.
Constitutional issues aside, coercive legislation must affect a
perceived national good.
Straw man (or woman) argument: the government can and does decide what is the national good, not according to common understanding of the phrase but according to a legislatively determined "national good".
Thus having emaciated, under-educated citizens must necessarily be beneficial to the National Good. No. Quite the opposite. Such deprivations are specifically for the good of Oligarchies and Elites.
Although I believe the Constitution, as amended, explicitly demands promotion of the "general welfare". Words either mean what they are traditionally thought to mean or we are at the ad hoc definition of said Words.
According to Webster's New Twentieth Century Dictionary, Unabridged, Second Edition,
welfare is defined simply:
noun, [Middle English welfare from wel, well and faru Anglo-Saxon fare, literally a journey, from faron to journey, go]
1. The state of being or doing well; the condition of health, prosperity, happiness; well-being.
2. A blessing (obsolete)
3. welfare work
With time, definitions change as well as social-technological-legal circumstances. In my non-legal understanding, the words used in the Constitution must be used in the understanding of the word's meanings when committed to paper.
Legal determinations of the word welfare are of course permissible. Would I be a strict constructionist to insist that the definition of words be interpreted according to the original intent when promulgated if it is not changed in law to mean something else.
Strict-constructionism has often been a bogeyman for conservative ideations. But conservative ideations are not necessarily regressive but a determination to abide by the wording and intent of those who formulated laws at the time they were made.
Too often, this conflation of strict-construction has been conflated to mean usually repressive, usually Republican, ideology. However the Constitution has been amended to change with new social conceptions, such as the end slavery, women's suffrage, etc. Thus the subsequent amendments to the original 10 should be interpreted according to the meanings and intents of the utilized wording to the times when propounded.
Radical Reformer's excellent essay admits of this type of interpretation when citing legal precedents. Thereupon rests the case for welfare in the Constitutional sense as implying the common good, prosperity, happiness AND well-being of the People of the United States.
Consider now, the excellent essay and well-considered comments in this thread, in which we as a progressive community are arguing for a view that the general welfare in clouds preservation AND promotion of health. Most of us understand what's going on here, whether we disagree or agree. But I fear, with just cause, l doubt the general population's perception of the points raised here.
And this, so to speak, is the rub. Communication with our fellow-travelers in the 99% who lack the education or insight to evaluate what we discuss here. Remember, c99 is a university. Many are unsuited for a university education, regardless of income. This is not a snobby elitist view. It is reality. Anyone who has worked with the general public for significant time, is well-aware of this. It is not cynical to say what I said--it is empirical.
In my most recent essay, I took note of an attendee to the smoke-and-mirror show, euphemistically called a Town Hall. One benighted ACA proponent insisted that the ACA was collapsing because of Congressional Conspiracy. He either lacked the wit or information to understand how feeble his protestations were.
@Alligator Ed
I suppose it boils down to whether a country belongs in perpetuity to the people who inhabit it, having representatives from among their peers (government of, by and for the people) to maintain/administer public property and law in their interest, which is also that of the country/ecology forming the life support system,
or if the country transiently belongs to whoever and whichever groups of the most powerful is/are powerful enough to control and pillage it at any given time, these having also transient (public) servants in permanent (public) office (existing to serve the public interest) via the use of public money also paying said public servants, in order to con the people of the country into conspiring at, and paying for, their own misery and destruction and that of the country.
Personally, I'd go with the former, on which concept it was said that America was founded, and widely represented as such. Apart from all else, that's sustainable and survivable while the 2nd proves not to be either.
The Psychopaths That Be can and will play with mutations of words, concepts and the law with the purpose of confusing us into passive submission, but they cannot alter reality - even though apparently deluded into believing that they can - only perceptions via propaganda.
Let's not play their self-serving confusion game on their creatively interpretive terms but continue as the reality-based, even if we must take it into account and work to counteract it.
What's the trust level of the American public for the corporate media pushing the propaganda these days?
Why is there such a panic within the rank
s ofTPTB and their lackeys to censor all but their own fake news if they do not recognize the hazard of their repudiation by the American people, already long at slow boil?They're slipping fast and their panic only hastens the process.
Psychopathy is not a political position, whether labeled 'conservatism', 'centrism' or 'left'.
A tin labeled 'coffee' may be a can of worms or pathology identified by a lack of empathy/willingness to harm others to achieve personal desires.
Faulty premise.
Health care doesn't need to be a Constitutional right in order for congress to establish a nationwide system. This isn't like the right to privacy where the government seeks to limit the right of citizens to contraception, homosexual relationships, abortion, etc.. In the case of MFA, Congress is providing services, not taking them away. Important distinction.
Congress, however, does need the Constitutional authority to enact such a system, which it has under Helvering v. Davis, 301 U.S. 619 (1937), the case which declared Social Security to be Constitutional.
Even more to the point, the Supreme Court in National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012), 183 L. Ed. 2d 450, 132 S.Ct. 2566 has already found Obamacare Constitutional.
The Supreme Court already declared the ACA Constitutional, which renders the question of MFA Constitutionality moot. After all, if Congress even has the power to mandate that its citizens buy health insurance from private companies, there is no reason it cant create a program for citizens to buy insurance from the government instead (mandated or not). (See also, Medicare, Medicaid, Federal flood insurance, Federal mortgage insurance, etc. etc.)
The current working assumption appears to be that our Shroedinger's Cat system is still alive. But what if we all suspect it's not, and the real problem is we just can't bring ourselves to open the box?
It's guaranteed under the "life" portion of Life, Liberty and
the pursuit of happiness.
For profit insurance denies us life. The government is REQUIRED to give us universal healthcare.
Thank you for an excellent chronolog article
Mark my words, "the general welfare" will become a crucial issue when the conservatives and libertarians convene their new constitutional convention for the alleged purpose of passing a balanced budget amendment. The slave-holding Confederacy copied the USA Constitution almost word for word; one of the few changes made was to carefully omit any mention of the the general welfare. Back in the 1990s, the buttwipe who more recently was economic adviser to candidate Jeb Bush wrote an article for the Mises Institute, arguing that omitting the general welfare was an important improvement.
Once the constitutional mandate to promote the general welfare is removed, then every social program ever enacted becomes unconstitutional. Intertwined with this issue is the issue of enumerated versus implied powers. You will often find Republicans, conservatives and libertarians speak about limiting the national government to enumerated powers. Pay attention to them: they are actively seeking to emasculate the federal government and obliterate programs like Social Security, Medicare, Medicaid, even the Weather Bureau, for all time.
Let me note here that on this issue of enumerated versus implied powers, the argument against the Republicans, conservatives and libertarian was made by Treasury Secretary Alexander Hamilton in the debate over the creation of the First Bank of the United States. Hamilton for is a favorite punching bag for many liberals and leftists, who dismiss him as being for a the creation of, and rule by, a wealthy elite. This is an inaccurate and very uninformed view to take of Hamilton. A few months ago, Matt Stoller made this argument, and he lost most of the respect I once had for him. Hamilton, for example, wrote one of the most lucid and concise definitions of the general welfare, which is easily understandable only if you some idea of what the founding of USA represents as the process of political struggle, and scientific advance, unleashed by the Enlightenment. I will venture this observation: if you do not understand how science and politics were linked firmly together in the Enlightenment, you are unlikely to fully understand and appreciate Hamilton and what he accomplished.
I have found, in talking to people, that they are also unaware that when it came time to decide between Hamilton and Jefferson on this issue of numerated versus implied powers, our first President, George Washington, decided unequivocally in favor of Hamilton's interpretation.
- Tony Wikrent
Nation Builder Books(nbbooks)
Mebane, NC 27302
2nbbooks@gmail.com
@Tony Wikrent
Weren't the rights of the people also carefully identified as not being limited to those mentioned?
Psychopathy is not a political position, whether labeled 'conservatism', 'centrism' or 'left'.
A tin labeled 'coffee' may be a can of worms or pathology identified by a lack of empathy/willingness to harm others to achieve personal desires.
Southern/Confederate Roots of Today's Conservative Ideology
Thanks, Tony. Just happened to have been recently perusing Nancy McClean's excellent, Democracy in Chains wherein she argues/reveals that the great-great-grandaddy of much of today's conservative and libertarian "limited government and property rights" thinking was actually John C. Calhoun, later picked up by a gentleman named James McGill Buchanan, who we should all become familiar with - RR
@dkmich
At this point purely anecdotally, someone I know has been repeatedly making the argument that single-payer is not constitutional on facebook. But far more importantly, I anticipate that the health insurance industry, their supporters on the right and just those who oppose national health insurance on principle, will raise the issue if the Medicare for All Act begins to gain real traction, regardless of the strength or weakness of their argument.