By Publius Huldah ——Bio and Archives--December 10, 2009
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...the government, ah you know, the government requires us to buy car insurance, it requires us to to engage in to buy the social security to buy uh social security insurance essentially... [transcribed to the best of my ability]Nan Hunter, law professor at Georgetown's O'Neill Institute for Global and National Health Law, gave the Introduction at a debate on October 26, 2009 between Professor Seidman and constitutional attorney David Rivkin. The topic was "Are health care purchase mandates constitutional?". After describing Seidman as "one of the ah leading constitutional law scholars in the nation", Hunter said,
...it is clear that government can mandate the purchase of private insurance before one engages in certain activities, for example, driving. It can mandate the purchase of automobile insurance as a quid pro quo for ah legally being able to drive. However, individuals can elect not to drive and therefore obviously not have to purchase auto insurance...Timothy Stoltzfuz Jost, law professor at Washington and Lee University, participated in Politico's September 18, 2009 forum on "Healthcare: Is 'mandatory insurance' unconstitutional?". Jost wrote that while the "claim" that "health reform" is unconstitutional is a "talking point" "pushed" by "Republicans", "former Bush officials" such as David Rivkin, Fox News Commentator Andrew Napolitano, town hall attendees, and tea party demonstrators, "[i]t is not...an argument taken seriously by constitutional scholars." Jost went on to say,
The only plausible question is whether Congress has the authority under the Interstate Commerce Clause to require individuals to purchase health insurance. The primary difficulty here is that it is hard to think of a precedent where Congress (or for that matter the states, other than Massachusetts with its recent health care reforms) have required residents to purchase a particular product or service. Auto liability insurance mandates come to mind, but these are only imposed on persons who use the public roads.Thomas J. Whalen, social science professor at Boston University, wrote on the Politico forum:
...the commerce clause seems sufficiently expansive enough [sic] to include mandatory health insurance for all Americans. After all, for some time now we've all been required to have auto insurance to operate our motor vehicles. And last time I checked, the Republic is still standing.Apparently, Whalen is not a lawyer, though his biography informs us that he is an "expert". And Jost said i t was "...correct to invite...political experts to respond, because this is not a serious legal issue..". So! While social science professors who agree with Jost are qualified to opine on this constitutional issue; "Republicans", "former Bush officials" such as constitutional attorney David Rivkin, Judge Andrew Napolitano, town hall attendees and tea party demonstrators are most emphatically not. Their position, you see, is not "serious". By their invocation of the auto insurance analogy, such "expert" and "scholarly" professors as Seidman, Hunter, Jost and Whalen show that they have no understanding of "federalism"; or they think you don't, and they are trying to take advantage of your supposed ignorance. So, is their metaphorical place under the dunce's cap, or is it Antenora in the Ninth Circle? What is "federalism"? "Federal" refers to the form of our government: An alliance of Sovereign States associated together in a "federation" with a national government to which is delegated supremacy over the States in specifically defined areas. James Madison, Father of the U.S. Constitution, illustrated "federalism" in Federalist No. 45 (9th para):
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people....[italics added]Madison explained "federalism" again in Federalist No.39 (3rd para from end):
...the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignity over all other objects...[italics added]And in Federalist No. 14 (8th para), Madison said:
... the general [federal] government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects...[italics added]
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Publius Huldah is a retired lawyer who lives in Tennessee USA. She writes on the U.S. Constitution. Before getting a law degree, she got a degree in philosophy where she specialized in political philosophy and epistemology (theories of knowledge).