Obamacare and the Constitution

T.L. Davis at the American Thinker takes a look at how Obamacare has sparked a crisis of how people (and politicians) view the US Constitution:

The debate is also a stage-setting for the greater issues of how to read the Constitution. There are two schools of thought on the issue of constitutionality: the Literalist school and the Case Law school. Each one approaches the document from a different point of view. The Literalist reads the words and meanings as they are presented without nuance, whereas the Case Law adherent reads the Constitution as seen through the filters of case law and precedent. The words they see are not the words themselves, but placeholders for an extended file of subsequent cases and rulings.


As one sifts through the arguments on each side of the debate over constitutionality, the commerce clause continues to rise as a point of contention. It reads, “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes[.]”
The Literalist reads this just as it is, seeking only the true definition of “regulate” to form an opinion on its application to current law. The nature of the clause, if read literally, suggests that it is intended to be external, not internal. Foreign Nations, Indian Tribes, and the States are external to the federal government and therefore dealt with as such. The purpose of the clause would then seem to be to make sure that commerce conducted by a state with any other, a foreign nation, or an Indian Tribe could be “regulated” by the federal government. The definition relied upon by the Literalist is not to regulate in the sense of unlimited regulations, but to make those dealings “regular,” or known and expected. An example would be to make trade between two states free of any and all duties. The clause appears to give the federal government the authority to intervene were one state to impose a duty on goods coming in from another state, a foreign nation, or an Indian tribe.
The Case Law adherent recognizes the Commerce Clause as encompassing any number of regulations placed on the citizens of the United States, corporations, businesses, schools, state and local governments, foreign nations, Indian tribes, or any other entity whatsoever where any commerce has transpired — or even where commerce has not transpired, but where ultimately some commerce may transpire in the future. In the case of ObamaCare, the Commerce Clause is used to force an individual to participate in commerce, against one’s will, with the promise of fines and imprisonment as a motivator. Every time the authority of the federal government to regulate these actions has been challenged, case law and precedent has been established and cemented by the practice of stare decisis, which is to honor previous rulings without significant reason to revisit them.

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