The 10th Amendment & Health Care

"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."

That is the 10th Amendment to the United States Constitution. With the debate on health care, cap and trade, and TARP/Stimulus, the 10th Amendment has become more relevant.

The healthcare bill in congress is not compliant with the 10th Amendment. It forces every citizen in the country to purchase a private product (health insurance) as a condition of citizenship. This type of top-down, Washington-based solution is not good for the country.

Ben Franklin said that in the system the Framers designed, the States would be the “incubators” of democracy. The design was for the States to come up with solutions, in competition with each other. The “competition” would make the country stronger. The genius is in designing a system that allows each state to compete against each other with ideas and solutions.

Dirigo-Health is a great example of this competition in action. Maine came up with a “solution” to get more people insured and lower costs. By any measure, Dirigo-Health failed. Other states with similar health care problems could learn by Maine’s experience and not duplicate our failure. Only Maine had to go through the cost and expense and the rest of the states got the benefit of the experience. The country is stronger as a result.

Texas was one of the first states to offer tax incentives for film production. People in the neighboring states of Louisiana and New Mexico saw that these incentives were creating jobs and investment in Texas, and not in their states. New Mexico and Louisiana developed their own tax incentives, and created educational programs to lure film production in to their states. This iterative process, driven by competition, makes each state more competitive. The competition makes companies who do business there stronger. The result is a stronger country.

The 10th amendment matters. States competing to solve problems is good for the country. The Federal Government needs to stop forcing solutions from Washington, and get back to letting the States compete for the best ideas.


Matt Jacobson is a Republican candidate for Governor of Maine.  He currently serves as President and CEO of Maine & Company, a private business attraction company which aims to create jobs in the state of Maine.

Your rating: None


There is also the 14th amendment vs Ben Nelson vote purchase.

Equal Protection:

... Generally, the question of whether the equal protection clause has been violated arises when a state grants a particular class of individuals the right to engage in an activity yet denies other individuals the same right. ...


You are already being forced to buy into a pension scheme

(Social Security) and and an old-age health care plan (Medicare). Why haven't you challenged them on constitutional grounds?

On your way to the courthouse to file your brief, are you going to drive on any portion of the Interstate Highway System?

Not so much...

You are incorrect, John.  Social Security is a government benefit/entitlement paid for through income taxes.  You are required to pay those taxes, and those taxes are used to administer a benefit.  But at the heart, they don't need to use those taxes for that, they are in the end, simply taxes.

The interstate highway system, on the other hand, is a perfect example of "interstate commerce", consistent with the commerce clause of the constitution.  The 10th amendment is ultimately about the states reserving the power to do everything not expressely spelled out for the Federal government to do, and the commerce clause is more than enough justification for the Feds being involved in highways.

Social Security and roads are very very different from this bill.

The point he is making is that the government is not taking more taxes here, they aren't setting up a government benefit here paid for by those taxes - they are quite literally forcing you to purchase a private good or service.

It is basically as though Congress passed a law which mandated that every American must purchase a car in 2010.  That makes about as much sense as the individual mandate in this bill, and such a stupid bill would clearly be unconstitutional.  Forcing people to purchase private sector goods and service is NOT the same as taxing income, and then earmarking said taxes for a government benefit.

Other insurance mandates are done state by state (car insurance, for example), and they only apply to driving on public, government funded roads anyway - they do not have a blanket insurance mandate.

But really the overall thesis of this piece was that the Federal goveernment is stifling innovation, and ultimately forging bad policy, because states who experiment with policy show why it succeeds or fails on micro levels, and those that succeed are imitated by other states, while those that fail are not.  By forging a one size fits all Federal healthcare monster, those types of experiments go away, and solutions that could have been taken care of at the local level, and individualized for the particular states are not even attempted.

It goes back to the general theory here - decentralized state power that makes large scale corruption and abuse much harder, or centralized power in the hands of a few bureaucrats out of touch and hundreds/thousands of miles away from you.

James Madison

James Madison, the "Father of the Constitution", famously vetoed the first ever bill authorizing federal funds for building roads, bridges and canals to knit the states together because he believed it to be unconstitutional. Fast forward, and the Interstate Highway System is rightly seen as one of Eisenhower's many fine achievements.

The car purchase analogy is way off base. A car is a consumer choice. Having a body is, however, a prerequisite for living.

James Madison also lived in a

James Madison also lived in a disconnected, agrarian country.  The rationale for an interstate road system was far less relevent to the commerce clause than it is now.

Your assertion that a body being a "prerequisite for living" has anything to do with the constitutionality of mandating the purchase of a private good/service is absurd.  That is as much a motivation for all 50 states to do something about health care individually as it is a motivation for the Federal government to "do something" about it.

In other words, you just identified a problem you think needs a solution.  That does not imply a Federal answer is correct, or even constitutional. 

Madison didn't say it was not relevent, he said it was

unconstitutional as a violation of states rights. And he was the guy who wrote the Constitution.

Pretty strong evidence that the interpretation of the Constitution changes with time.

If you don't agree, please stay off the Interstate.

...and he said that because

...the justification of federal funding for a bunch of roads within state boundries did not exist.

You are (I think intentionally) missing the point.

Federal funding for a road in New York at the dawn of the Republic is not the same as federal funding for a multi-state interstate system that is critical to the interstate travel of people, movement of commercial goods from state to state, and indeed the conduct of commerce. 

Madison's imagination of a Federal roads project was framed in a different world.  The roads he was rejecting as "unconstitutional" did not have the purpose or scope of what we are talking about here (interstate road systems).  American society did not have the commercial use for them - thus the commerce clause did not apply to road funding.

It was not until the Industrial revolution and large amounts of goods and products needed to be moved large distances that the purpose for Federal funding of roads began to be legitimately constitutional.

Difficult as it seems to be for you to grasp, the nature of society has a bearing on the constitutionality of certain things.  If a President wants to build a cross country road in 1789, he likely wanted to do so simply because he wanted to have the ability to travel to remote areas for migration or military needs. 

Today when we build cross country roads, we are building them to serve vital interstate commerical interests.

Society has changed, and so has the relevence of certain constitutional sections.

 There seems to be conflicts.

 There seems to be conflicts. The political party who says it should be up to the states is the same party that would invoke religionism for all states. The political party who says we should go to Iraq is not leaving it up to the states and we all are paying a price in blood and money. Washington has signed agreements on free trade and we have seen our jobs go from most all of the states. And what state (as they go broke from factories being closed) can compete with 2 to 3 billion cheap laborers. 

Bottom line, is that there is no perfect scenario. Democrats have proven that they are dumb and republicans have proven to be a bunch of nuts. 

On healthcare, we can look to other countries in what they do. PBS (Frontline I believe) went to several countries and there is no perfect scenario on healthcare. One conclusion is that none of the countries would give up their healthcare for what we have. 

With globalization, we are not competing against states. We are competing with China, India, and other countries. And so far, no one in the democrat party or the republican party has come up with solutions. It is the same o, same o, of failed ideology. Inside our country, competition has come in the form just knocking the other guy out of business. Put an extra chocolate chip in a cookie and you beat the competition. You need something new. Our jobs are lost in the Midwest, and there is nothing new in jobs to go to. And if you can find a job, of course, it pays less. So, we have seen the destruction of the middle class. Again, as I have said many times before. You invest in your country, in your people, and in the future. Just tax cuts does not solve problems. I hold the republican party to a higher standard as they are supposed to understand economics and it is just a party of failed ideology. 

There's two ways to take this.

I mean, some people say Medicare is good -- some say it's bad. Some even say that it's both, and should be carefully studied to ensure the maximum benefit comes from it for the minimum cost. Lots of shades of grey there.

You want to play the Tenth Amendment card, though, you're giving up that nuance. Not a lot of room for grey there. Of course, maybe you're fine with that?

There's two ways to take this -- you either mean what you say and are comfortable with those consequences, or you're a liar, mouthing the words you hope will bring you temporal power. Let's find out which!

Do you support abolishing federal restrictions on drugs other than antibiotics, to reserve those decisions to the states?

Do you denounce the Defense of Marriage Act, reserving this decision to the states? (Note that you don't get to hide behind Maine's skirts here. You can quite consistently oppose gay marriage for Maine while opposing the federal sanction.)

Do you support the abolition of Social Security and Medicare, reserving the decision to implement similar schemes to the states?

I'll admit, I don't expect a response. I don't think you've got one. And let's be fair, those are rotten questions. But if you're gonna talk up Amendment Number Ten then you have to answer them -- right here. Right now.

Broad implications

Regarding the 10th amendment . . . it doesn't really hold strictly. In a way, this is what the civil war resolved. Do we have a strong federal government or do we have a federation? We have a strong federal government; although, I believe that the states should fight for certain regional control.

Now, regarding the federal goverment . . . it would have less power if states did a better job than the federal govenment. In regards to health care, none have not. This is the same for private industry.

Slightly off topic  . . . conservative believe in a strong federal government when it comes to defense (and subsidies to industry) and dems believe in it with social issues. So I don't see the big-government thing as a conservative (of the mainstream republican kind) or liberal issues. At least liberals are honest about it; although, I'm not suggesting they are right about it.

So . . . all in all, 10th isn't going to work. Neither Liberals (obviously) nor republicans will use it. Both would then have to curtail pork and promises to their constituencies.

Strong federal government vs Federation vs Balance of power?

Liberty and Justice (or) Liberty vs Justice

Justice makes everybody the same, Liberty makes everybody different. There is a natural opposition between the two.

A strong federal government and strong state governments are also in opposition but that does not mean a balance can not exist between the two.

If we go back to the arguments during the creation of the Government; State government was seen as a method to check or limit or balance the power of a unlimited strong federal government.

This video is rather long but goes through the history of the 10th Amendment ...


Running for governor?

Its really hard for me to believe that someone writing a piece so lacking in any legal context would think they can be a governor!

In the long run, I think it is disingenious points like this from both the left and the right that are undermining any chance this country has to govern itself. its been like this for close to 20 years now. 

good conversation

Finally some good conversation.  Matthew Gagnon makes an excellent point about the nature of the US Constitution and what the framers had in mind.  They wrote a relatively simple document that was intended to be changed and interpreted over time.  Similarly they lived in a much simpler time. No electricity, no indoor plumbing, no radio/tv, no refrigeration. Very different from our society.  So yes, they got some things right and as our society changed, they got some things, in retrospect, wrong.  Slavery for example. Any advocates for slavery out there in conservative la-la land?  How about woman's right to vote?  Think that adding that was a mistake?  Come on conservative guys, I know there's some who think that that's a mistake and the woman should stay in the house and pop out babies.

Now you can argue all you want whether the health care bill is constitutional or not. Ultimately you're not a constitutional scholar and neither am I. It'll be a matter for the courts to decide, just like the framers of the constitution intended.   What is obvious, however is how conservatives are simply parroting what conservative talk show hosts say. It's unconstitutional! They'll take our guns too! Death panel! Obama is a black nazi muslem from Kenya! I saw it on the Glenn Beck show!  I have yet to hear a good argument as to why it's unconstitutional. Where does it say in the constitiution that the Local or  Federal or a State Government CAN'T require you to purchase something. Flood insurance anyone? Entrance to a national park?   How about mineral rights?  Has a corporation been force to pay a licensing fee to drill on federal land?  Let's move on to a state and local level: Driver's license, auto insurance, hunting permits, building permits, toll roads, corporate registrations; these are all examples of how a government FORCES an individual to pay for a product or service.  Some of these examples have been PRIVATIZED, toll roads are the most obvious.  So in these cases there is a precident for paying a government mandated fee to directly to a private company. 

Now let's talk about how conservatives discuss these fees for services.  They really call them TAXES.  Anytime a democrat runs talking about raising drivers licenses fees or park entrance fees, republican opponents call them TAXES.  So let's use that then. If you're going to call these fee for services TAXES, then perhaps this health care premium is simply a tax that happens to get administrated by a supposedly much more efficient private company.  Any takers on that argument?  Or do you want to admit that Republicans are simply spewing BS when they campaign that a fee for service is a tax and that Democrats only want to raise your taxes?  Probably don't have the balls to admit that. So all that nonsense above about whether its a tax or not a tax is sillyness.  It's semantics folks.  Some folks will call fees a tax, some won't.  Either way you have to pay a fee if you want a service.  Can't walk in to Walmart grab your fat pants and walk out.  Well you could but they'ld probably through you in jail. Ain't nothing free in life so get over it.

But back to the constitution. Similarly it doesn't say that the government can or can't specificaly punish someone via a death penalty.  It does say that you can't have cruel and ununusual punishment.   Killing someone seems pretty cruel to me but whatever, that's the law right now.  It also says you have the right to bear arms, but not what those weapons are.  Perhaps it should only apply to weapons available at the time of the Constitution. Should a person have a right to a nuclear arm? How about a pistol with shells that can contain anthrax? It doesn't mention abortion at all, pro or con.  It doesn't say specifically how to decide whether a hanging chad is valid or not which ultimately determines who wins a presidential election that is too close to call.  It doesn't say that a corporation can or can't donate money to an election.  Or a person for that matter.  All these things are interpretations developed over the course of several hundred years to solve specific problems that faced our society. You may think that some of these decisions are good while others are bad. But certainly none are permanent.   Unless of course you're a die hard conservative and are against "activist judges"  and once a decision is made that's that.  Can't change it. No do overs. 

Dred Scott would be disapponted if everyone thought that.




The Unconstitutionality of government health care

Folks, I'm a retired lawyer and blog on the Constitution. Allow me to shed some light on this proposed government takeover of medical care.

1. Medical care of the people is not one of the "enumerated powers" of Congress.  Neither is social security, medicare, medicaid, food stamps, etc. and 99% of everything else Congress does. See:

2. Because our brilliant legal scholars (?) in Congress have been babbling about how the "interstate commerce" or the "general welfare" clauses authorize them to make a law taking over medical care, I wrote articles about those as well:    and

3. Because others have been saying that health care is a "right", I rebutted that claim as well:

4. Finally, because some very silly law and sociology professors have been equating auto insurance with health insurance, I refuted that as well:

We are in serious trouble - brought about, in large part, because of our ignorance of the Constitution.  We can fix this - but don't have much time. Learn the correct arguments and then go out and make them! Regards, PH 

ninth amendment

Do you approve of all ten of the bill of rights?  In partulcar, do you believe in the ninth amentment?  In your answer, conseder the statement we frequentely hear from Republicans that the constitution does not mention a right to privacy or abortion. 

Supreme Court usurpations via the 14th Amendment

I wrote a paper explaining how the Supreme Court in effect re-wrote & re-defined the 14th Amendment in this paper.  Re the bill of right?  I tend to agree with A. Hamilton for the reasons set forth in the same paper.  There are some lawless usurpers on that court.



Just curious, are you saying that states should be able to criminalize homosexuality (for religious reasons of course). But the Supreme Court has stepped all over states rights---Hmmmm….So if a state wanted to criminalize all sex on Sundays (the holy day) states rights should prevail---because states wouldn’t make stupid laws about sex---lol   



Gunthestops --answer

In this paper, I explain "federalism" - the distinction between the few enumerated powers granted by We the People via the U.S. Constitution to the 3 branches of the federal government, and the retention of all the remaining powers by the States or the People:

Clearly, "sex" (of any type) is not one of the enumerated powers granted to Congress.  Nor is "sex" a constitutional right.  The Declaration of Independence states that our Rights, being unalienable gifts from God, pre-date and pre-exist The Constitution.  Thus, no branch of the federal government has any jurisdiction over  "sex".  "Sex", of course, is a gift from God.

"Sex" or rather the abberant forms of sex (child molestation, rape, etc.) are matters for The States to handle.  Citizens must look first to their respective State Constitutions to see what laws their State Legislatures are authorized to make.  It is much easier for a citizen to influence State legislation than Congress. 

Notices of comments

Is there a way we can be notified when someone comments or questions one of our posts?