Originalism at Work - the American Constitution, Part II

[James Clark]

There's a lot of talk about what the founders of the United States wanted when they drafted the Constitution, and that's often at the core of the fight about what's "American" and what's not.   

As I've mentioned before, my university degree was concentrated in colonial American history (with communications/advertising being the other half), and I keep up with content in the field just because it's an ongoing area of interest, not to mention that that it's very topical in today's political climate.

As I've also mentioned before, I generally hold originalism in low regard as a guiding theory for how law ought to be applied in the modern world, but that's not the topic for this thread.  Instead, let's look at what actual people with more knowledge of original intent than we'll ever have thought about nationalized healthcare.

(Note: this is an older article, but a friend sent it to me today and I found it worth contributing.)

[Alan Klein]

Jim, I'm a little confused.  Shouldn't the title be about healthware and the constitution not Originalism?  You said you didn't want to discuss originalism. 

In any case, I'm not sure anyone's arguing the government can't create government paid for healthcare.  After all, we have had Medicare and Medicaid for decades.  I think the argument, if you're referring to Obamacare, was the requirement to pay a penalty if you didn't buy healthcare insurance.  Most felt that would be unconstitutional because then the government could force private citizens to become customers of particular private companies which would be unconstitutional. That was cleverly explained by Chief Justice Roberts when he called  it a tax not a penalty.  Being a tax, which the government is allowed to do per the constitution, made Obamacare legal. 

[Alan Klein]

PS, if you're interested in the Revolutionary War, as I am, I visited all the sites where the Battle of Long Island occured at the beginning of the war in what is now Brooklyn, Staten Island, The Bronx and Manhattan.  I created a high-tech "treasure hunt" in Geocaching where you visit these sites to find hidden containers spread around NYC.  I broke it up into 8 Phases. If you ever make it to NYC, you might be interested in doing one or more phases.
https://www.geocaching.com/bookmarks/view.aspx?guid=22b34a41-dca2-4b5d-88a2-35e086ec3766

[degrub]

There's a lot of talk about what the founders of the United States wanted when they drafted the Constitution, and that's often at the core of the fight about what's "American" and what's not.   

As I've mentioned before, my university degree was concentrated in colonial American history (with communications/advertising being the other half), and I keep up with content in the field just because it's an ongoing area of interest, not to mention that that it's very topical in today's political climate.

As I've also mentioned before, I generally hold originalism in low regard as a guiding theory for how law ought to be applied in the modern world, but that's not the topic for this thread.  Instead, let's look at what actual people with more knowledge of original intent than we'll ever have thought about nationalized healthcare.

(Note: this is an older article, but a friend sent it to me today and I found it worth contributing.)

well, that was an act of congress that created the sailor's healthcare program. Congress was given the authority by the constitution for better or worse to do so. The constitution is silent on the specific case. It is a political/social  issue rather than a constitutional one.

[Alan Klein]

Jim, the Supreme Court didn't do much in 1798.  Most of its work in the beginning had to do with issues between the States and ambassadors. So I'm not too sure if there was any judicial review of the legislation.  (Marbury v. Madison) 1803.

"The court's power and prestige grew substantially during the Marshall Court (1801–35).[17] Under Marshall, the court established the power of judicial review over acts of Congress,[18] including specifying itself as the supreme expositor of the Constitution (Marbury v. Madison)[19][20] and making several important constitutional rulings that gave shape and substance to the balance of power between the federal government and states (notably, Martin v. Hunter's Lessee, McCulloch v. Maryland and Gibbons v. Ogden).[21][22][23][24]"
https://en.wikipedia.org/wiki/Supreme_Court_of_the_United_States#Earliest_beginnings_through_Marshall


Frankly, Congress has used the power "to regulate interstate commerce" to pass all sorts of laws that have little to do with commerce.  But the Supreme Court has allowed it as long as they can find some tangential relationship however minor it is.  I remember once a few decades ago when the Court put its foot down and reverse legislation that created a law against having arms within a certain amount of feet (I think it was 1,000)  near a school.  The court said that had nothing to do with commerce and rejected it.  That may be interesting to discuss in the other thread regarding guns and mass shootings.

[faberryman]

What would you do without Wikipedia or Google?

[Alan Klein]

What would you do without Wikipedia or Google?

We quickly really learn a lot with them although you have to be very selective to cull the truth.