By
Dr. Edwin Vieira, Jr., Ph.D., J.D.
April 13, 2010
NewsWithViews.com
Confronted
with the strident debate on national health-care legislation, one must
be amazed at how often the opponents of the monstrosity being cobbled
together by the legislative Doktors Frankenstein in the Disgrace
of Columbia fail to appeal to constitutional fundamentals.
In
The Federalist No. 57, James Madison relied on a constitutional
principle that, for all intents and purposes, disposes of any and every
argument in favor of the present bills before Congress. Recall that
a main purpose of The Federalist Papers was to refute claims
that the Constitution delegated too much power to the General Government,
at the expense of the States and WE THE PEOPLE. In No. 57, Madison addressed
the contention that “the House of Representatives * * * will be
taken from that class of citizens which will have least sympathy with
the mass of the people, and be most likely to aim at an ambitious sacrifice
of the many to the aggrandizement of the few”.
Madison
offered a number of reasons why this argument was invalid. But most
relevant here was
a fifth circumstance
in the situation of the House of Representatives, restraining them
from oppressive measures, that they can make no law which
will not have its full operation on themselves and their friends,
as well as on the great mass of the society. This has
always been deemed one of the strongest bonds by which human policy
can connect the rulers and the people together. It creates between
them that communion of interests and sympathy of sentiments of which
few governments have furnished examples: but without which every government
degenerates into tyranny. If it be asked, what is to restrain the
House of Representatives from making legal discriminations in favor
of themselves and a particular class of the society? I answer: the
genius of the whole system; the nature of just and constitutional
laws; and, above all, the vigilant and manly spirit which actuates
the people of America—a spirit which nourishes freedom, and
in return is nourished by it.
If
this spirit shall ever be so far debased as to tolerate a law not
obligatory on the legislature, as well as on the people, the people
will be prepared to tolerate anything but liberty. [Emphasis
supplied.]
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Precisely
why, as a matter of constitutional law, can Congress “make no
law which will not have its full operation on themselves and their friends,
as well as on the great mass of the society”? Because part of
“the genius of the whole system” and “the nature of
just and constitutional laws” require equality in all legislation
that is capable of equal application. The Preamble sets as one of the
Constitution’s goals “to * * * promote the general Welfare”—which,
because every power of Congress must be interpreted and applied in conformity
with the Preamble, entails that no law that can be written so as to
reach Americans in general can be tricked out with “legal discriminations
in favor of [Members of Congress] and [any other] particular class of
the society”. The Constitution deems the ruling criterion of “the
general Welfare” so important that it repeats that requirement
in Article I, Section 8, Clause 1, which delegates to Congress the “Power
to lay and collect Taxes * * * to pay the Debts and provide for the
* * * general Welfare of the United States”. So, any legislation
which involves taxation, spending, or both must be equally applicable
to all similarly situated Americans.
Now,
as is self-evident, a scheme for “national health care”—involving
taxation, spending, or both—can be written so as to apply
to everyone, on precisely equal terms, designed to
provide precisely equal benefits for and to impose precisely equal burdens
upon Members of Congress, the President, and public officials and employees
of the General Government, as well as “Joe Doaks”, “Ma
and Pa Kettle”, and every other ordinary American. Yet the national
health-care bills before Congress do not provide for universal and
equal benefits for and burdens upon all Americans. No,
indeed. Members of Congress—“and their friends”, as
Madison so delicately put it—are excluded from these bills, and
allowed to retain for themselves especially favorable health-care coverage
unavailable at any price to average citizens.
On
the face of it, then, the present national-health care bills, being
(in Madison’s formulation) “[proposed] laws not obligatory
on the legislature, as well as on the people”, are the products
and the making of nothing less than tyranny. As the English
political philosopher John Locke defined it,
Tyranny is
the exercise of Power beyond Right, which no Body can have a
Right to. And this is making use of the Power any one has in his hands;
not for the good of those, who are under it, but for his own private
separate Advantage.
’Tis a
Mistake to think this Fault is proper only to Monarchies; other Forms
of Government are liable to it, as well as that. For where-ever the
Power that is put in any hands for the Government of the People, and
the Preservation of their Properties, is applied to other ends, and
made use of to impoverish, harass, or subdue them to the Arbitrary
and Irregular Commands of those that have it: There is presently becomes
Tyranny, whether those that thus use it are one or many.
An
Essay Concerning the True Original, Extent, and End of Civil Government
(London, England: Awnsham Churchill, 1690), §§ 199 and 201.
Even
earlier, the eminent theologian and jurist Francisco de Vitoria—from
the University of Salamanca in Spain—had held to the same definition:
“Herein, indeed, is the difference between a lawful king and a
tyrant, that the latter directs his government towards his individual
profit and advantage, but a king to the public welfare[.]” De
Iure Belli (1557), quoted in James Brown Scott, The Catholic Conception
of International Law (Clark, New Jersey: The Lawbook Exchange,
Ltd., 2008), at 38.
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So,
confronted with this crescent tyranny, what should Americans do? The
first step must be to revive “the vigilant and manly spirit which
[in the past] actuate[d] the people of America—a spirit which
nourishes freedom, and in return is nourished by it”. With that
spirit rekindled, anything is possible.
Edwin Vieira, Jr., holds four
degrees from Harvard: A.B. (Harvard College), A.M. and Ph.D. (Harvard
Graduate School of Arts and Sciences), and J.D. (Harvard Law School).
For more than thirty years he has
practiced law, with emphasis on constitutional issues. In the Supreme
Court of the United States he successfully argued or briefed the cases
leading to the landmark decisions Abood v. Detroit Board of Education,
Chicago Teachers Union v. Hudson, and Communications Workers of America
v. Beck, which established constitutional and statutory limitations on
the uses to which labor unions, in both the private and the public sectors,
may apply fees extracted from nonunion workers as a condition of their
employment.
He has written numerous monographs
and articles in scholarly journals, and lectured throughout the county.
His most recent work on money and banking is the two-volume Pieces
of Eight: The Monetary Powers and Disabilities of the United States
Constitution (2002), the most comprehensive study in existence of American
monetary law and history viewed from a constitutional perspective. www.piecesofeight.us
He is also the co-author (under
a nom de plume) of the political novel CRA$HMAKER:
A Federal Affaire (2000), a not-so-fictional story of an engineered crash
of the Federal Reserve System, and the political upheaval it causes. www.crashmaker.com
Now, as is self-evident,
a scheme for “national health care”—involving taxation,
spending, or both—can be written so as to apply to everyone,
on precisely equal terms, designed to provide precisely equal
benefits for and to impose precisely equal burdens upon Members of Congress...
