Moralists assert government health care is a right. Constitutionalists ask, "What is the basis for the right?"
The Declaration of Independence provides the philosophical basis for the existence of a free people. It establishes that life, liberty and the pursuit of happiness are unalienable and endowed to the people by their Creator.
The Constitution establishes the existence and the structure of a government to secure these rights consistent with the consent of the governed, "We the People."
The Constitution's original Articles delegate to the government certain enumerated and limited powers. Powers not delegated are reserved exclusively to the States or the people. The first 10 amendments, known as the Bill of Rights, specifically define what the government cannot do. Nowhere in the original Articles, Bill of Rights or succeeding amendments is there a fundamental right to health care.
The phrase -- ¦ promote the general welfare" in the Preamble of the Constitution is not an implicit right to health care as some would argue. The Preamble is not considered a substantive part of the Constitution according to the Supreme Court's decision in Jacobson v. Massachusetts (1905).
Article 1 of the Constitution grants Congress the power "to lay and collect taxes to pay debts and provide for ... the general welfare of the United States." Madison, Monroe, Jefferson and all presidents prior to Franklin Roosevelt believed Congress's power to tax and spend did not confer the right to do whatever Congress thought to be in the best interest of the "general welfare."
The Founders believed the Constitutional power to tax and spend was limited to further only those ends "specifically enumerated" in the Constitution. A right to health care is not "specifically enumerated."
The erosion of the Constitutional limitation on Congress's spending power began with the New Deal and the Supreme Court's decision in U.S. v Butler (1936). The Court held the only limitation on Congress's power to tax and spend was that it be for the "general welfare." The Court also gave Congress the power to determine what would benefit the "general welfare."
A national health care program is not a fundamental right guaranteed by the Constitution. It is merely a benefit that may be conferred by Congress under its power to tax. What Congress gives (health care), Congress can also take away (Medicare) to pursue perceived social, political or budgetary objectives.
Our Founders warned against a welfare state where the government endeavors to take care of every one from the cradle to the grave.
They warned that confiscatory taxation and deficit spending for the "common welfare" is a return to tyranny.
Thomas Jefferson wrote, -- ¦ we shall all consider ourselves unauthorized to saddle posterity with our debts, and morally bound to pay them ourselves."
James Madison wrote, "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."
Their writings were prescient for our time.
About the author: Jim Fuscaldo of Cedar is a retired scientist and attorney with a bachelor's degree in science and pharmacy and a law degree.
About the forum: The forum is a periodic column of opinion written by Record-Eagle readers in their areas of interest or expertise. Submissions of 500 words or less may be made by e-mailing letters@record-eagle.com. Please include biographical information and a photo.
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