If Thomas Jefferson were on our Supreme Court and the Obamacare case came before him, I suspect his decision would begin as follows:
"On every question of construction [of the Constitution], carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed."[/b]--Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322.
Indeed, the most fundamental rule of constitutional law, which dates back to English common law which our Constitution recognizes [Amendment VII], is to enforce the documented intentions and beliefs under which the Constitution was adopted, and this is summarized as follows:
“The fundamental principle of constitutional construction is that effect must be given to the intent of the framers of the organic law and of the people adopting it. This is the polestar in the construction of constitutions, all other principles of construction are only rules or guides to aid in the determination of the intention of the constitution’s framers.”--- numerous citations omitted, Vol.16 American Jurisprudence, 2d Constitutional law (1992 edition), pages 418-19
And so, to determine whether or not Congress’ power to regulate commerce among the States was intended by the States when adopting the Constitution to allow the exercise of authority which would be assumed under Obamacare, requires a review of the historical record when the Constitution was being framed and ratified.
I have personally studied the framing and ratification debates of our Constitution, and particularly read and studied the debates concerning the power to regulate commerce among the States, and have never found so much as a whisper made with reference to the power to regulate commerce being associated with allowing Congress to enter the various united States and regulate, much less mandate, the American People’s health care needs and choices ___ a power which on its face defies the very reason for which our Constitution’s Tenth Amendment was adopted!
But let us now with all sincerity and due diligence document the reasons for which the power to regulate commerce among the State’s was granted to Congress, and if the States intended by this power to grant the authority which would be exercised under Obamacare. Exactly what was the evil to be corrected by our founders when granting power to Congress to regulate commerce among the States?
We immediately find one evil being address by our founders regarding the regulation of commerce in Art. 1, Sec. 9 of our Constitution!
“No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.”
This prohibition happens to be the primary reason for which the power to “regulate commerce” was granted, and can be boil down to our founder’s intentions to insure free trade among the States. In Federalist Paper No. 42 we see this theme articulated with reference to Congress’ power to regulate commerce among the States:
“A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquility.”
The power to regulate commerce among the states was in fact intended to prevent one state from taxing another state’s exported goods, wares and merchandise as they passed through its borders, or interfere with the traffic in such articles.
Additionally, the power to regulate commerce granted to Congress was also intended to allow Congress to have oversight in a specific and clearly identified area__ a State‘s inspection laws:
“No state shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing it's inspection laws: and the net produce of all duties and imposts, laid by any state on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the Congress.”___Article 1, Section 10, Clause 3.
The historical record proves it is sheer insanity to even suggest the State Delegates to the Convention of 1787 which framed our Constitution, or the State Legislatures when ratifying the Constitution, intended by the power in question to be delegating authority to Congress to enter the various States to regulate the health care needs and choices.
As a matter of fact, our very own Supreme Court is on record repeatedly acknowledging health laws are within the powers retained by the states! For example, Justice John Marshall stated the following in Gibbons v. Ogden, 1824
State inspection laws, health laws, and laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c. are not within the power granted to Congress.
And Justice Barbour referenced the above case in New York v. Miln, 1837, and confirmed the State’s retained authority over the subject of health laws:
"Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a state and those which respect turnpike roads, ferries, &c., are component parts of this mass."
Finally, almost 100 years later the Supreme Court again acknowledged Congress is without power to regulate medical practices in the States.
“Direct control of medical practice in the states is obviously beyond the power of Congress.” _ Linder v. United States, 1925
The fact is, our founding fathers intentions concerning Congress’ powers as described in the above mentioned cases are summarized in Federalist No. 45
“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, and the internal order, improvement, and prosperity of the State.
And the above words were given force and effect when the Ninth and Tenth Amendments to our Constitution were adopted!
And so, the only question which our Supreme Court ought to expound upon is, when have the American People debated granting power to Congress to enter their States and tax for, spend on and regulate their health care needs and choices, and then, as required under Article V of our Constitution, have given their consent to such power by a three fourths approval of the Legislatures of the several States, or by Conventions in three fourths thereof?
As a matter of fact, the irony of this very case is, a majority of the States have officially rejected such power being granted to the federal government by filing suite against Obamacare, and, a majority of the American people likewise reject the adoption and enforcement of “Obamacare”.
The only remaining question is whether or not our Supreme Court will address the fundamental issue which is, the American People have never debated and then delegated a power to Congress to enter their States and regulate their health care needs and choices. And, without such power being granted, the enforcement of Obamacare would be an act of legislative tyranny!
Obamacare by consent of the governed (Article 5) our amendment process. Tyranny by a majority vote in Congress or a Supreme Court's majority vote!