To Nancy Pelosi on Health Care - Are YOU Serious?

"All that is necessary for evil to succeed is for good men to stand by and do nothing." - Edmund Burke

October 26, 2009

Last week, the U.S. Speaker of the House, Nancy Pelosi, responding to a reporter's question of whether the Constitution gave Congress the authority to enact individual health insurance mandate, kept repeating, "Are you serious?"

Now, let's give Speaker Pelosi the benefit of the doubt and attribute her impolite reply to simple disbelief. In fact, from her point of view her authority is unchallenged per a September press release, and many others such as Politico's Erwin Chemerinsky and even the contemporary Supreme Court agree. From her press release, Pelosi states:

"The Constitution gives Congress broad power to regulate activities that have an effect on interstate commerce. Congress has used this authority to regulate many aspects of American life, from labor relations to education to health care to agricultural production. Since virtually every aspect of the heath care system has an effect on interstate commerce, the power of Congress to regulate health care is essentially unlimited."

The Speaker is certainly correct that federal Congress has certainly legislated on "many aspects of American life."  In fact, there is a lot more at stake with the Commerce Clause than "just" our health care – the entire authority for economic central planning rests on this single clause. I strongly disagree with Pelosi that the Constitution allows Congress broad power in this respect. First, the exact language from my job description in Powers of Congress, Article I, Section 8, Clause 3:

"The Congress shall have Power... to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

Pelosi believes that she has the power to "regulate Commerce... among the several States" and I suggest that in blunt language she instead literally means to "control the economy... of the States."  Pelosi and her ilk accomplish this by confusing the modern meanings with the legal meaning and contemporary context of the founders.

Regulation, in today's dictionaries, means "a governmental order having the force of law." However, this is not the historical definition.  The founders believed "regulate" to literally mean 'to make more regular' or, per Black's Law Dictionary at the time, "a rule or order prescribed for management or government; a regulating principle; a precept." In other words, regulate meant that Congress should in principle assist with Commerce disputes between the States, but did not grant Congress the power of law to inflict criminal penalties. This is most clearly seen in Article 2 of the Kentucky Resolutions of 1798 written by Thomas Jefferson.

Next, although the Federalist Papers are not legal documents, they do serve as public demonstrations of the founders' intentions as they were part of a series of essays published to explain the Constitution to the public before its' ratification. James Madison in Federalist #42 wrote:

"The defect[s] of power in the existing Confederacy to regulate the commerce between its several members... [has] been clearly pointed out by experience... It may be added that without this supplemental provision, the great and essential power of regulating foreign commerce would have been incomplete and ineffectual. 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 tranquillity... it would stimulate the injured party, by resentment as well as interest, to resort to less convenient channels for their foreign trade... The necessity of a superintending authority over the reciprocal trade of confederated States, has been illustrated by other examples as well as our own. In Switzerland, where the Union is so very slight, each canton is obliged to allow to merchandises a passage through its jurisdiction into other cantons, without an augmentation of the tolls."

A modern example of "unregulated" Commerce by the founder's meaning would be manufacturing companies in the interior of India, which has 28 states. As goods move by rail or truck from interior states to a seaport in a coastal state, each state assesses its own tariff at its border which rightly leads to "animosities" and a "less convenient channel" for foreign trade. But what did the founders mean by 'Commerce'?

Within the last century, several American lawyers have claimed the founder's definition of commerce was "all gainful activities" or "all human interactions." This has been taken by the leviathan federal Government as authority to control not just health care, but the minimum wage, manufacturing, agriculture, the mining, oil and lumber industries, possession of firearms, land use, criminal law such as federal drug laws, and environmental protection, in most cases usurping states' rights per the 10th Amendment and in some cases even inventing jurisdictions.

Fortunately, Dr. Robert Natelson wrote a well-documented paper "The Legal Meaning of 'Commerce' in the Commerce Clause" in 1996. After examining thousands of instances of 'Commerce' used in contemporary legal documents, Natelson concluded that commerce simply and exclusively meant "exchange" or "traffic" and its associated activities, such as navigation, to the founders. In simple English, commerce benefits agriculture or manufacturing, but does not include either agriculture or manufacturing. Furthermore, Natelson notes:

"If we read "Commerce among the several States" to mean "all gainful economic activity among the several States," then the clauses by which Congress is empowered to regulate commerce with "foreign Nations" and the "Indian Tribes" become either largely redundant or nonsensical. Even more seriously, if the Commerce Clause grants Congress power to regulate all economic activities, then some of Congress’ other economic powers become surplus."

So, if the Commerce Clause gave Congress economic central planning authority, many of the powers listed in the Constitution would be redundant. The powers of Congress over postal roads and offices, dockyards, intellectual property, and more would be repetitive if the power was already enumerated in the Commerce Clause. During the Federalist Papers debate, one would have expected the Commerce Clause to have been hotly debated by the anti-Federalists if it had been truly intended to give unlimited power over all gainful economic activities to the federal government. Federalist #42 would not have been able to dodge such a huge stripping of power from the States. What do we hear from the historical record? Silence, which indicates that this was a non-issue.

Natelson goes into a lot more detail than I have, and it is much easier to shred the other constitutional references given to support government infringement into health care.  Please read my Health Care plank which also links to the Constitution of the USSR (which DOES authorize government involvement in health care) and this great discussion on the "General Welfare" clause.  The "Necessary and Proper" clause is briefly dismissed by the referenced Natelson paper, but more strongly in his other papers. In short, Pelosi and the rest of Congress simply MUST have a constitutional amendment passed before legislating on health care. Their actions in Congress are highly illegal, and is one of many unconstitutional and illegal acts committed against the American people by Congress.  Since no help can be expected from the appointed-for-life Supreme Court, the last defense, really the only defense, is that of We the People ourselves.

So in formal reply to Speaker Pelosi, even the notion of federal government authority over the health care of the American people is completely absurd. My reply is: "Madame Speaker, are YOU serious?"

I suppose I should thank Speaker Pelosi since it is oligarchs like herself and my current representative who put me into a state of cold rage and motivated me to return home from China and run for public office.  It is the brash arrogance of Pelosi and the rest of the Establishment that remind me why America is sick inside. As the lyrics to this Shinedown song continue, I suppose I should thank Pelosi for the venom, but does she really think it would paralyze the American people?  While I prepare my congressional run to replace a Republican incumbent, Nancy Pelosi should be preparing to be replaced by her challenger, John Dennis.

Voters in Pennsylvania's 15th district face a critical decision in the congressional election of 2010. They can vote for a 20-year career politician and incumbent Republican, whom, per the local Lehigh Valley Tea Party group, has voted with Nancy Pelosi on 65% of all House floor votes and only 17% with the Republicans in 2009 so far.  Or, they can vote for an 11-year Democrat politician directly backed by Joe Biden and the White House and funded by $4,000 straight from Nancy Pelosi's congressional campaign fund.

Or they can vote for myself (Jake Towne), a private citizen running as a true independent who will guard the Constitution against all enemies, deliver accountability through the novel Open Office plan, and act to restore our constitutional Republic from the deep grave dug by the Democrats and Republicans career politicians both.

Please spread this message, volunteer with the campaign - we need volunteers to pass out flyers at two local Halloween parades this upcoming weekend, or donate to my campaign.  Yard signs as shown are available.  Pledges are also being accepted here for a grassroots money bomb on November 5th.  Congressman-to-be John Dennis is also listed, and don't forget about other liberty candidates and future Members of Congress like Paul Lambert of Alabama, Jaynee Germond of Oregon, RJ Harris of Oklahoma, William Kern of New Jersey, and Mike Vasovski of South Carolina.

My plank on health care can be read here, and I have twice written open letters to the incumbent on the constitutionality of health care in June and also in August.  All of my open letters remain unanswered. In town halls, I have watched the Congressman simply brush off questions from the public about not only the constitutionality of the Democratic plan but also his very own unconstitutional health care reform package.

In a year's time, it will be time to wipe the grins off my opponents' faces.  For now, remember, remember, the fifth of November...