Monday, November 30, 2009

A lawyer's Constitutional Perspective

Michael Connelly, a retired attorney and Constitutional Law Instructor from Carrollton, Texas posted the following on his blog. The Truth About the Health Care Bills - Connelly. These comments reference the original house bill but they do relate to the bill that was passed recently by Pelosi

It is interesting to read the views of an attorney looking at the healthcare proposal from a constitutional perspective.

The current administration is slowly attempting to whittle our rights and liberties away as they try to masquerade their real motives with things like healthcare.

If healthcare were the real issue, there are a number of simple items that both democrats and republicans agree on that could be passed in a very short time. But power and control is the real motive behind the legislation.

Well, I have done it! I have read the entire text of proposed House Bill 3200: The Affordable Health Care Choices Act of 2009. I studied it with particular emphasis from my area of expertise, constitutional law. I was frankly concerned that parts of the proposed law that were being discussed might be unconstitutional. What I found was far worse than what I had heard or expected.

To begin with, much of what has been said about the law and its implications is in fact true, despite what the Democrats and the media are saying. The law does provide for rationing of health care, particularly where senior citizens and other classes of citizens are involved, free health care for illegal immigrants, free abortion services, and probably forced participation in abortions by members of the medical profession.

The Bill will also eventually force private insurance companies out of business and put everyone into a government run system. All decisions about personal health care will ultimately be made by federal bureaucrats and most of them will not be health care professionals. Hospital admissions, payments to physicians, and allocations of necessary medical devices will be strictly controlled.

However, as scary as all of that it, it just scratches the surface. In fact, I have concluded that this legislation really has no intention of providing affordable health care choices. Instead it is a convenient cover for the most massive transfer of power to the Executive Branch of government that has ever occurred, or even been contemplated. If this law or a similar one is adopted, major portions of the Constitution of the United States will effectively have been destroyed.

The first thing to go will be the masterfully crafted balance of power between the Executive, Legislative, and Judicial branches of the U.S. Government. The Congress will be transferring to the Obama Administration authority in a number of different areas over the lives of the American people and the businesses they own. The irony is that the Congress doesn’t have any authority to legislate in most of those areas to begin with. I defy anyone to read the text of the U.S. Constitution and find any authority granted to the members of Congress to regulate health care.

This legislation also provides for access by the appointees of the Obama administration of all of your personal healthcare information, your personal financial information, and the information of your employer, physician, and hospital. All of this is a direct violation of the specific provisions of the 4th Amendment to the Constitution protecting against unreasonable searches and seizures. You can also forget about the right to privacy. That will have been legislated into oblivion regardless of what the 3rd and 4th Amendments may provide.

If you decide not to have healthcare insurance or if you have private insurance that is not deemed “acceptable” to the “Health Choices Administrator” appointed by Obama there will be a tax imposed on you. It is called a “tax” instead of a fine because of the intent to avoid application of the due process clause of the 5th Amendment. However, that doesn’t work because since there is not hing in the law that allows you to contest or appeal the imposition of the tax, it is definitely depriving someone of property without the “due process of law.

So, there are three of those pesky amendments that the far left hate so much out the original ten in the Bill of Rights that are effectively nullified by this law. It doesn’t stop there though. The 9th Amendment that provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people;” The 10th Amendment states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are preserved to the States respectively, or to the people.” Under the provisions of this piece of Congressional handiwork neither the people nor the states are going to have any rights or powers at all in many areas that once were theirs to control.

I could write many more pages about this legislation, but I think you get the idea. This is not about health care; it is about seizing power and limiting rights. Article 6 of the Constitution requires the members of both houses of Congress to “be bound by oath or affirmation” to support the Constitution. If I was a member of Congress I would not be able to vote for this legislation or anything like it without feeling I was violating that sacred oath or affirmation. If I voted for it anyway I would hope the American people would hold me accountable.

For those who might doubt the nature of this threat I suggest they consult the source. Here is a link to the Constitution:

Transcript of the Constitution of the United States - Official

And another to the Bill of Rights:

Bill of Rights Transcript

There you can see exactly what we are about to have taken from us

Thursday, November 26, 2009

Thanksgiving Blessings

Today we celebrate Thanksgiving which is my favorite Holiday. We gather around tables of food with family and friends and recall the tremendous blessings that God has freely bestowed upon us and our country. It is a tradition that most Americans are proud to acknowledge and one that most Americans are willing to celebrate its true meaning. It is a holiday not encumbered with as much marketing and commercialism as most others.

Although our secular and progressive friends would love to eliminate the Christian historical relevance from the holiday, there really is no way to divorce the spiritual aspect from the celebration of Thanksgiving

The Pilgrims came to America to form a separate community in which they could worship God as they saw fit and to flee from the persecution of the King.

During the journey here, the Mayflower Compact was written by William Bradford and the other elders. It was an arduous two-month journey. The compact was designed in 1620 to establish just and equal laws for all members of the community whether they were believers or non-believers. The inspiration for the Compact came from the Bible.

When the Pilgrims arrived in what is now America, it was a desolate, barren land with no greeting parties, stores, shelters or anything else. About half of them died during the first winter including Bradford’s wife. But as spring arrived things only slightly improved. There remained many problems in the community and based on Bradford's own journal, he described the reason for these problems as being an early form of socialism. The community was set up where everything that was produced was to go into a common store and each member of the community was entitled to one common share. Everything that was done, whether it be building houses, clearing land, harvesting crops etc., all belonged to the community. Bradford was the acting governor and he soon recognized the inherent problem with this collectivist system.

Bradford wrote in his journal the following; "The experience that was had in this common course and condition, tried sundry years ... that by taking away property, and bringing community into common wealth, would make them happy and flourishing – as if they were wiser than God,". He followed this with "For this community [so far as it was] was found to breed much confusion and discontent, and retard much employment that would have been to their benefit and comfort. For young men that were most able and fit for labor and service did repine that they should spend their time and strength to work for other men's wives and children without any recompense ... that was thought injustice." Property: William Bradford, Of Plymouth Plantation 120--21

After recognizing the inherent problem with this socialist system, Bradford assigned plots of land to each family which they could work and manage on their own and reap the rewards from their individual hard work. The results and turnaround were tremendous. This community recognized early that people did not want to work without incentive and rewards. It was motivational to the individuals and the families and it was certainly more biblically based and honoring to their Creator.

Here is how Bradford describe this in his journal; "This had very good success."

So on this Thanksgiving Day, let’s give thanks to our Creator who has given us the greatest opportunities in the greatest country to thrive, prosper and honor Him.

Wednesday, November 25, 2009

Technical Problems

I apologize for the interruption in service. We are still unsure of what has happened. I have access to all the postings for the last 4 years through a secondary email account on the blog but cannot get it back online with my primary account. It will take a while to get things updated.

The tech support has been less than helpful and they have form letter responses and no way to talk to anyone directly. So after 3 days, I am less than hopeful I can get the original blog restored.

The following is the last posting:

The Misconception of Charity

Now that the radical left has taken another step towards increasing healthcare costs, adding to our deficit and eliminating more of our liberties, individual freedoms, rights and responsibility, it might be a good time to read this from Dr. Cleveland who has a very good understanding and historical perspective.

The URL to the article:

The Immorality of Government-Mandated Health CarePosted By Paul A. Cleveland

Dr. Cleveland is Professor of Economics and Finance at Birmingham-Southern College in Alabama.

As America’s politicians debate the issue of health-care reform, one element seems strangely missing from their deliberations: the question of the morality of government-mandated health insurance. Is it moral for government to institute such insurance or to force employers to provide it? The current debate assumes that it is. Discussion has centered primarily on how far coverage can be extended, with no effort to defend the morality of mandated coverage.

To examine the morality of the proposed health reform we must ask the following questions: What is the role of government and what are its moral bounds? Also, how do these bounds apply to the current health-care reform debate? If, in this examination, it is discovered that government has no proper authority to insure the availability of goods and services generally, then all health-
care reform proposals seeking to establish the provision of health insurance should be rejected.

The uncritical acceptance of the proposition that a major purpose of government is to insure the provision of some goods or services is related to another popularly held proposition. That notion, either conscious or unconscious, is that government can miraculously generate resources to provide for people’s needs. But, how is that possible? Can government actually create material prosperity where none existed beforehand? Can it cause by fiat an increase in the number and kinds of products produced without harm? It should be self-evident that the answer to these questions is no. Government cannot create by mandate. It relies on its power of taxation and coercion to provide material benefits to selected citizens. In order for it to provide some benefit for an individual it must impose a cost of equal or greater value either on that individual or on someone else. Nevertheless, the mythical concept that government can provide cost-free benefits continues largely on the basis of wishful thinking and covetousness.

No Consumption Without Production

In reality there is no effortless production of anything. We can only consume that which is produced by the sweat of someone’s brow. Furthermore, our government was not primarily instituted for the purpose of production. Its primary role with respect to the economy is to punish people who use force and deceit for their own gain. History is testimony to the extent to which some individuals will inflict pain and hardship on others in order to obtain what they desire. Thus government’s primary role as an institution is to thwart this behavior by punishing the perpetrators of injustice. To that end, government uses force. Citizens are required to pay taxes to support the police function of government since society benefits from the ensuing order and peace which allow for civil relations among people.

Regrettably, this same force can be put to illegitimate ends. This occurs when the government begins to play favorites among the citizens by extending benefits to some while confiscating property or curbing the rights of others. The most obvious contemporary cases revolve around the many welfare programs established by the government. Benefits are extended to some by taxing away income from others. The costs of such benefits always exceed the costs of purchasing the benefits directly because of the bureaucratic overhead needed to administer the programs. Current health-care reform plans follow the same approach. Therefore, the question of the morality of any government provision of health care, or of mandated health insurance, can only be resolved by considering whether or not government redistribution of wealth is justified.

Do the Ends Justify the Means?

It is tempting to say that the ends aimed for are good and argue, therefore, that such government action is good. After all, what decent person would not desire to see some basic provision of food, clothing, or needed medical care provided for all those who could not pay? But to conclude that government intervention is good on this basis is to argue that the ends justify the means. The ends, in and of themselves, are not a sufficient reason for concluding that government provision of goods and services is just.

I recently had a conversation with a fellow professor about the health-care situation. Mycolleague expressed the common view. She argued that adequate health care is a right, “because we are human.” But such a statement begs the question: How does being human, in and of itself, generate any rights? It is clear that being human alone cannot justify any rights for humans. David Hume once noted that “the rules of morality are not the conclusions of our reason.” Therefore, if we carry Hume’s statement to its logical conclusion, we must conclude that if any human rights exist, they exist only as they have been endowed. Thus rights must be defined apart from ourselves. Ultimately they must be defined by the One who has the power of being in and of Himself, since He alone is in a position to establish such license. We are then dependent upon His proclamation of right and wrong to discern the rights of the individual. Apart from such an endowment, there are no rights! This view was expressed in the Declaration of Independence as well as many other writings and documents of the time.

Rights of Individuals

What are an individual’s rights? As expressed in the Declaration, the individual is endowed with the right to life, liberty, and pursuit of happiness. These rights allow each individual to use his talents and his property freely to the ends he personally has in mind so long as he does not violate the rights of others. In this context, people can voluntarily interact and trade with others on mutually agreeable terms to further their own interests.

The Judeo-Christian heritage substantially affirms this understanding of individual rights. The Bible requires its reader to respect the property rights of others. “Thou shall not steal,” [1] and, “Cursed is the man who moves his neighbor’s boundary stone,” [2] are its admonishments, in other places the Scriptures encourage hard work and honest dealings with others. Taken as a whole, the Bible prohibits the use of force to obtain what we wish to consume for ourselves. But this is exactly what transpires when government mandates a plan to provide health care services to everyone! As already shown, the government by definition employs force. It is a coercive institution. Thus when government begins the process of providing, or mandating the provision of, goods and services in society, it ceases to perform its primary function of thwarting and punishing wrongdoers and actually begins to participate in the very plunder that it was supposed to stop. By using force to take from one person in order to give to another, it is involved in stealing.

Why has government more and more compromised its position by engaging in legal plunder when it is clear that such action is wrong? There are two reasons. [3] The first is selfishness. People would rather have someone else pay for their consumption than work hard and purchase things for themselves. This is as true for health care as it is for any other consumable. This was demonstrated during the last presidential campaign when a man phoned a radio talk show. Bill Clinton was well ahead of George Bush in the polls and he had promised to bring about government-mandated universal health insurance. To this situation the man proclaimed, “I can’t wait ‘til Bill Clinton is elected president and gets his health-care reform through Congress. Then I won’t have to pray to God that my children don’t get sick.”

The caller had no intention of revealing his true character that day; but he did. In his proclamation we find a deeper problem. It is not that he lacks health insurance or that he cannot afford medical care. The real problem is that he does not want to pay for it himself. Rather, he wants someone else to pay, not as a matter of mercy shown to him, but as a matter of coercive force. Selfishness which leads to systematic thievery will destroy a nation. A nation can survive and prosper when there are a few thieves, but as more people leave productive endeavors to participate in government largess, production wanes and economic hardships increase. This is the inevitable outcome of all government schemes aimed at providing some benefit for some citizens at the expense of others.

The second is perhaps the most pervasive reason for the government’s drift toward promoting welfare programs in general, and for its current consideration of mandating the provision of universal health insurance. Americans have traditionally been compassionate. Generosity for those in need has been a hallmark feature of the American experience. Private charities, churches, nonprofit organizations, and the volunteerism associated with them have been a salient feature of our culture. Stated simply, the American people have a passion for helping out those in need. This spirit is the reason why most of our hospitals developed as nonprofit institutions. Yet it is this very passion which threatens to undermine the fabric of our society when charity is pursued by way of governmental mandate.

It is not hard to see how this situation can arise. At any given point in time, the available resources to meet our ends are always limited. That is, we can always imagine a better circumstance than the one we are presently in. If this is true for individuals, how much more true is it for voluntary groups seeking to do good? It is, therefore, easy to see the temptation facing people who desire to show mercy and compassion toward others: to use voluntary contributions to lobby for government action rather than devoting them directly to the cause in mind. If the efforts are successful, the organization can tap into the much larger pool of resources available in the public treasury to promote their cause. If passion for the cause blurs their vision, then they may well use government force and, as a result, inflict harm upon the neighbors they aim to help. Such is the state of American “do-goodism” in the twentieth century—coercive charity.

This movement has been greatly aided by the religious community. One cannot read the Bible for long without realizing that it calls its followers to show mercy and compassion toward others. As a result, well-meaning people have often pushed for government intervention because they see the public treasury as the only institution which has a pool of funds large enough to meet the need. However, the Bible never suggests that the government is the means through which mercy is to be shown. Actually, the evidence indicates that such action is more than inappropriate. When Satan offered to place Jesus in political control of the kingdoms of the earth, Jesus rejected the offer arguing that it was sin to have other gods above God.[4] Jesus understood that mercy and compassion are voluntary responses motivated by love and that no government is capable of forcing people to love their neighbors. He understood that any such attempts were nothing more than a false image intended to mimic the real thing.

National health-care insurance, or its mandated provision, is unjust. It is nothing more than a forced charity, which is no charity at all. In this vein we might flatter ourselves into believing that we are doing good works, but it simply is not true. True mercy is extended as a matter of voluntary choice. It is not forced. Government mandates which require some to provide for others is false philanthropy. It is fundamentally selfishness unleashed and it will thwart future prosperity. If health insurance is extended the quality of medical care will decline. The end result will be exactly the opposite of what such schemes purport to offer. Instead of provision and prosperity, pain and hardship will follow.

1. Exodus 20:15.

2. Deuteronomy 27:17.

3. Frederic Bastiat refers to these two r reasons for govern-meat involvement beyond its real purpose in his book, The Law (Irvington-on-Hudson, N.Y.: The Foundation for Economic Education, 1950).

4. See Luke 4:1-13. Labels: bible, healthcare, liberty