Health Care has NOTHING to do with "General Welfare"

In today’s political arena there is one hotly contested proposal which has garnered the attention of the entire world. The debate over "Health care reform" has consumed the nation and forced many who have had little previous interest in politics into the battle. Clearly there are flaws in the current system and something should be done to fix it but is there a solid, logical and Constitutionally acceptable solution to our problem? As we all know, there are people from every side coming up with ideas which they think are fair and reasonable and, for the most part, they have some pretty good plans. The details and conclusions within these plans are a bit more debatable and have brought forth a flood of information and facts which has made the final decision much more difficult to reach. I have a much more unique perspective of how to resolve the issue and who is actually responsible for that solution. I contend that the widely accepted premise that the federal government needs to get involved on an operational level is seriously flawed. The United states Constitution does not give our federal government the liberty to control health care, rather, it reserves that power to the state or local levels.

To better understand my thesis we must first understand its merits. For this we will go back to the birth of our nation and the founding documents that bind our government to its responsibilities. The one phrase within the founding documents that has been the vessel for the federal involvement in social matters over the last hundred years or so is the "general welfare" clause. This phrase appears twice within the Constitution but is never clearly defined. The ambiguous phrase is found first in the preamble where it is written as "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America ". It is found again in Article I section 8 where it states that "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". For some, this is an open door for the federal government to step in and make changes, on a national level, in order to prevent or repair anything that could be construed as a national crises. For others, it was put in place as a binder between the states for the expressed purpose of keeping the union whole and functioning as one single nation.

The debate over this matter goes back to the founders themselves at the very conception of this great nation. The argument of the time was over the use of federal funding to aid in the growth of manufacturing and was most bitterly contested between Thomas Jefferson and Alexander Hamilton. Mr Hamilton believed that the country had a far better chance for success if the manufacturing sector was propped up through funding provided by the taxpayers and that its success would translate to prosperity to all citizens. Mr Jefferson, on the other hand, felt that it would be an encroachment on the rights of others to take the fruits of their labor in another mans interest. As in any debate, others involved in politics at the time were quick to choose sides but the vast majority of notable figures fell on the side of Mr. Jefferson. Only Benjamin Franklin was willing to speak on the side of Hamilton and even he was hesitant to accept the long term ramifications of that kind of federal power.

The premise of governing on behalf of the common good was the basis for an ideology known as Res Publica (public matter) which was the Latin origin of the word Republic.Thomas Jefferson along with the majority of our founding fathers were strict Republicans, in that, they believed that America should be governed as a Republic. .The fundamental premise of a Republic originated in Rome during the time of Gaius Julius Caesar. It was created in opposition to the empirical power structure and was designed to spread power evenly across the nation to help promote the "common good" of the people. According to The International Encyclopedia of the Social and Behavioral sciences, The Roman Republican Constitution of 509-49 bc was created to balance power between the government and the governed in order to promote the " common good, and never to the private will or domination ( dominatio ) of any private master". Jefferson wanted to create the same balance of power but where the Romans failed by not creating a defined separation between the powers, he was determined to make that separation a legal imperative. It was the desire to create a governing body which provided for the common good but favored no individual or group of individuals that led to the basic principles of our own Republic.

Prior to the ratification of our Constitution, there was another document which defined the governance of The United States known as the Articles of Confederation. This is not considered a "founding document" since it was actually replaced by the Constitution but it did serve as the base for its replacement and it was our first legislative federal document to contain the phrase "general welfare". The text of article III of the Articles of Confederacy reads as "The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever". Clearly the spirit of this text offers no support to the Hamiltonian perspective of the phrase, rather, it serves as a binder to the states in the name of national unity. After taking time to himself to truly consider the words of the Articles of Confederation, James Madison wrote in his notes that "The Idea of voluntery complience with the law was sheer fancy since no state would willing submit to the laws of a federal congress" "sacrifice for the general welfare was wishful thinking" .."every general act of the union must necessarily bear unequally hard on some particular member of the union" . Mr. Madison goes on to explain that compliance between the states in the name of general welfare must be a legal obligation and defined as such in the Constitution. The transfer of this phrase into article I, section 8 of the Constitution was unanimously approved by the Constitutional Convention with no debate over its meaning what so ever and was rewritten as "general welfare of the United States". This subtle difference in phrasing was the justification for Mr. Hamilton’s dispute but was not taken seriously by most of those who were involved at the time.

I would be remised if I were to leave out the single most compelling argument for my thesis. On Saturday, January 19,1788, James Madison published "The Federalist #41". This would be the definitive explanation of the "powers conferred by the constitution", authored by the very man who had been recognized as the actual author of the Constitution itself. After hearing and reading about his detractors who feared that article I, section 8 could be misused, Mr. Madison wrote that "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". He goes on to state that "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". He makes a clear point that all of the powers conferred by the Constitution are clearly detailed, including the powers allowed for the promotion of the "general welfare" of the states.

The first real test involving the powers granted by the "general welfare" clause came about during the debate over Roosevelt’s "New Deal" programs. During the early twentieth century immigration was at its peak and the jobs were not keeping up with the population. We saw a sudden influx of uneducated workers with little understanding of the fundamental design of our political system. This massive shift in the populous opened the door for self proclaimed "socialist progressives" to gain popularity and led to the election of Franklin Delano Roosevelt in 1932. Regardless of his popularity, his federally funded social programs were continually being struck down by the Supreme Court as "unconstitutional" under the
"reserve clause". Mr. Roosevelt reacted by attempting to restructure the Supreme Court by adding enough new members to "stack" it in his favor. While he failed in this effort he did garner enough support through his "fire side chat" to turn the Supreme Court’s decision on Social Security and a few other programs. On May 24th, 1937, the supreme court upheld the decision to give the federal government power to collect taxes to provide payments of "Old age benefits" . In the opinion of the court, delivered by Justice Cordozo, it was noted that " When money is spent to promote the general welfare, the concept of welfare or the opposite is shaped by congress, not the states".This suggested that the power granted by the constitution through the Supreme Court decision would leave the highest level of government with a great deal of "moral authority" for the first time in American history. Despite the courts discomfort with this power, they felt that the responsibility must lay on the national government because any one state who would implement this system would become "bait to the needy and dependent elsewhere". What bothers me about this decision is that they recognized that the system would be harmful on a local or state level but ignored that it would have the same effect on a national level. Now, instead of the needy migrating from state to state in search of "haven of repose", they are migrating from other nations and placing the predicted burden on our entire country.

The fact that the Supreme Court chose to grant the federal government a level of power that is not granted by the Constitution does not make it Constitutional. It simply means that the topic needs to be revisited and clarified. I believe that a Supreme Court who would act on behalf of supporting the Constitution, as it was defined by its authors, rather than acting on the perception of moral imperative, would find that the proposed health care reform does not comply with the Constitutional requirements. I also believe that a statewide version of this bill would be Constitutional but would create the scenario defined by Justice Cordozo where those who are needy will flock while those who provide will flee. As an alternative solution to the health care problem, I would consider creating a federal medical loan system. A pot from which people in need of care could draw a low interest loan that can be repaid through their own taxes. This creates an incentive for those who use the system to research their options and make decisions based on the balance of quality and cost of services rather than just taking what they can get and leaving others with the bill. Because my system is a "user pay" system, the costs will be merit based and controlled by market forces which would keep those costs substantially lower. The federal government would be operating a bank instead of an entire national medical system which would free up a good amount of bureaucratic costs and lessen the tax burden on American businesses. As we know from past evidence, when Americans get to keep more of their own money they are much more charitable. In short time there would be charities created to help those who cannot repay their medical debt due to their medical condition. My proposed system stands up to Constitutional scrutiny because its usage is not obligatory and its costs are distributed only among its users. Beyond that, the universal access to this program would force insurance companies to offer a much more competitive alternative than they do now.