Sunday, March 21, 2010


In a PJ Media article that is looking at the Constitutional challenges that the health care bill being voted on today would face, I was challenged by an idea that I never thought about before.

The article has a lot to do with the law in Idaho that explicitly forbids the government from restricting its citizens to makes its own decision in regards to health care by a fine. It has lots of good information and worth a read....but the part that stuck out to me was the following,
The first line of Article I, Section 8 states, in part:

The Congress shall have Power To … provide for the … general Welfare of the United States … [Emphasis added.]

Notice that this first sentence does not say, “The Congress shall have the Power to provide for the general welfare of the citizens of the United States.”

Every time the phrase “United States” is used in the Constitution, it denotes the federal (or central) government. This is clearly seen in Tenth Amendment where the “United States,” the “states,” and “the people” are three distinct concepts:

Amendment 10 The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. [Emphasis added.]
This quote from the article along with one of the comments,
The problem with all of this reasoning is that the people who will interpret the law, and apply their interpretation, may not see the Constitution in such clear terms. Remember, the “Constitutional” right to an abortion was found by the Supreme Court, and they also have managed to distinguish between the First and Second Amendments, making one apply to the Federal government, and state and local government also, while the other only applies to the Feds. Amazingly, the Amendment that begins “Congress shall make no law…” applies to the states and locals also, while the Amendment that ends “the right of the People to keep and bear arms shall not be infringed.” only applies to the Federal government, even though the wording is much more vague and seems to imply *no one* shall infringe those rights. If the Dems want the courts to, and the courts comply, protection of the right of free speech will somehow mandate compulsory health insurance. Trust me, they’ll find a rationale for this. It won’t make any sense to ordinary people, but then so much of what they do already doesn’t.
If you take those two points together and apply it to the first amendment, it puts a very different flavor to it than is usually applied. The first amendment reads,
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
I've always thought that the 1st amendment was a faulty argument to not allow any type of religious expression, such as a nativity scene on government property because there should have to be an actual law prohibiting the expression, which is not allowed anyways, in a circular fashion, in order to restrict citizens from placing religious symbols on government property.

The thought provoked by the above quotations (especially points in bold) made me think of the 1st amendment in even a different way. What if, according to the language, "Congress shall make not law...," the states are allowed to make laws regarding the expression of religion? Congress (federal) can't make a law, but a state can because the Constitution doesn't prevent them from; in fact Congress isn't allowed to make a comment regarding religion at all.

We have used the phrase, "Separation of Church and State" so many times referring to this amendment that people neglect to truly understand and realize the implications of the actual wording of the amendment itself.

I don't think it was a mistake, either, for the founders to allow the states to make those decisions about issues in the first amendment. That seems counter intuitive today, but think about it.

The states were supposed to be loosely affiliated with the federal govt. As you get closer to the people, the laws become more specific to that local group. That way, citizens and individual communities can live how they want to, even if that means having prayer in schools or whatnot. No restrictions to their rights. If people don't like it, they can move to another state....or they can use the process of having laws being drafted by the people in a local election, using propositions to supersede the legislators in the state. California does this all the time. The people are the check and balance for any rights being trampled on. And, if it went to court, the federal government could never ultimately make it easy for the states to justify denying the people that vote.

You wouldn't have the same "melting pot" that we have today. More than likely, cultural groups would bind together even more than they do now, creating laws that apply particularly to their mindset. That already happens in some ways when you look at places like China Town, Little Armenia, Utah, Quakers etc. This would take that tendency to stick with people who share your values one more step, in that in some states, communities could say how they want things. City by city, county by county. In one city, Christmas could be celebrated freely, and in another it couldn't.

Like I said, it's counter intuitive, counter cultural, and uncharacteristic of how our nation has developed over time, but when you look at the words of the 1st amendment, it's interesting to consider how things would be different if you applied it only to the federal Congress and not the states. It'd be the ultimate "power to the people." You'd actually have a free country where communities could be free to express themselves in all venues as they'd like. This would definitely change the texture and sense of our rights as citizens of a state and the blending of cultures in our society.

This is not an essay on whether taking the 1st amendment in this direction is a good idea or not, but it is interesting for me to think about. We'll see if and how this concept of separating the powers of Federal govt, state govts, and the people's votes, in the context of health care is interpreted in all of the amendments that pertain to it.

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