Patient Protection and Affordable Care Act

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What Is a Right? – Judge Andrew P. Napolitano

Judge Andrew P. Napolitano

Judge Andrew P. Napolitano

In the continually harsh public discourse over the President’s proposals for federally-managed healthcare, the Big Government progressives in both the Democratic and the Republican parties have been trying to trick us. These folks, who really want the government to care for us from cradle to grave, have been promoting the idea that health care is a right. In promoting that false premise, they have succeeded in moving the debate from WHETHER the feds should micro-manage health care to HOW the feds should micro-manage health care. This is a false premise, and we should reject it. Health care is not a right; it is a good, like food, like shelter, and like clothing.

What is a right? A right is a gift from God that extends from our humanity. Thinkers from St. Thomas Aquinas, to Thomas Jefferson, to the Rev. Dr. Martin Luther King, Jr., to Pope John Paul II have all argued that our rights are a natural part of our humanity. We own our bodies, thus we own the gifts that emanate from our bodies. So, our right to life, our right to develop our personalities, our right to think as we wish, to say what we think, to publish what we say, our right to worship or not worship, our right to travel, to defend ourselves, to use our own property as we see fit, our right to due process — fairness — from the government, and our right to be left alone, are all rights that stem from our humanity. These are natural rights that we are born with. The government doesn’t give them to us and the government doesn’t pay for them and the government can’t take them away, unless a jury finds that we have violated someone else’s rights.

What is a good? A good is something we want or need. In a sense, it is the opposite of a right. We have our rights from birth, but we need our parents when we are children and we need ourselves as adults to purchase the goods we require for existence. So, food is a good, shelter is a good, clothing is a good, education is a good, a car is a good, legal representation is a good, working out at a gym is a good, and access to health care is a good. Does the government give us goods? Well, sometimes it takes money from some of us and gives that money to others. You can call that taxation or you can call it theft; but you cannot call it a right.

A right stems from our humanity. A good is something you buy or someone else buys for you.

Now, when you look at health care for what it is, when you look at the US Constitution, when you look at the history of human freedom, when you accept the American value of the primacy of the individual over the fleeting wishes of the government, it becomes apparent that those who claim that healthcare is a right simply want to extend a form of government welfare.

When I make this argument to my Big Government friends, they come back at me with…well, if people don’t have health insurance, they will just go to hospitals and we will end up paying for them anyway. Why should that be? We don’t let people steal food from a supermarket or an apartment from a landlord or clothing from a local shop. Why do we let them take healthcare from a hospital without paying for it? Well, my Big Government friends contend, that’s charity.

They are wrong again. It is impossible to be charitable with someone else’s money. Charity comes from your own heart, not from the government spending your money. When we pay our taxes to the government and it gives that money away, that’s not charity, that’s welfare. When the government takes more from us than it needs to secure our freedoms, so it can have money to give away, that’s not charity, that’s theft. And when the government forces hospitals to provide free health care to those who can’t or won’t care for themselves, that’s not charity, that’s slavery. That’s why we now have constitutional chaos, because the government steals and enslaves, and we outlawed that a long time ago.

Published on December 19, 2009

Andrew P. Napolitano [send him mail], a former judge of the Superior Court of New Jersey, is the senior judicial analyst at the Fox News Channel. His next book is Lies the Government Told You: Myth, Power, and Deception in American History, (Nelson, 2010).

Take from http://archive.lewrockwell.com/napolitano/napolitano12.1.html.


“The rights of man come not from the generosity of the state but from the hand of God.” John F. Kennedy


The Original Intent of the “General Welfare” Clause

The United States Constitution

The United States

There are limited, delegated, and discreet powers of Congress in Article 1, Section 8 of Constitution. Here they are:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;–And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

That’s it! These are the limited, delegated, and discreet powers that our Constitution gives to Congress; these eighteen (as listed above) specifically enumerated areas and responsibilities make up what the Founders called the Enumerated Powers Doctrine, which was designed to restrain and limit the power and reach of the Federal government. Where in this section of our Constitution does it say anything about health care? Our communist friends use the “general Welfare” clause mentioned in the Preamble and in Article 1, Section 8, Paragraph 1 of our Constitution as a basis for today’s welfare programs. However, they fail to understand the original intent of the Founders regarding this clause and instead interpret it through their own postmodern lens. Regarding the Preamble reference, the Supreme Court in Jacobsen v. Massachusetts (1905) ruled that the Preamble is a statement of goals and not an authorization to Congress (This is also confirmed on page 75 of the “The Constitution of the United States: Analysis and Interpretation” (1992), provided by the U.S. Government Printing Office (GPO)). In relation to the Article 1 reference, the “general Welfare” clause, according to Thomas Jefferson, is “not a grant of power to ‘spend’ for the general welfare of the people, but was intended to ‘limit the power of taxation’ to matters which provided for the welfare of ‘the Union’ or the welfare of the whole nation. In other words, federal taxes could not be levied for states, counties, cities, or special interest groups” such as women, the poor, the middle class, the rich, etc. (Page 387 of “The Making of America” by the National Center for Constitutional Studies (NCCS)). As Jefferson saw it, “Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated.” James Madison affirmed this view in “that this clause restricted the taxing power to matters which provided support for the national government in carrying out its assigned responsibilities” (as listed in Article 1, Section 8)(Page 387 of “The Making of America”). Here is what some other Founders said regarding this clause:

Alexander Hamilton: “The welfare of the community is the only legitimate end for which money can be raised on the community. Congress can be considered as under only one restriction which does not apply to other governments, they cannot rightfully apply the money they raise to any purpose merely or purely local…The constitutional test of a right application must always be, whether it be for a purpose of general or local nature.”

Archibald MacLaine (of North Carolina): “Congress will not lay a single tax when it is not to the advantage of the people at large.”

Edmund Randolph (of Virginia): “the rhetoric of the gentleman has highly colored the dangers of giving the general government an indefinite power of providing for the general welfare. I contend that no such power is given.”

Hamilton: “The United States, in their united or collective capacity, are the objects to which all general
provisions in the Constitution must necessarily be construed to refer.”

Clearly, according to the Founders, Congress cannot grant things to individuals or preferred groups at the expense of another individual or preferred group, thereby harming the “general” populace. So, anyone who claims that the “general Welfare” clause allows the Congress to give away “welfare” has a profound misunderstanding of the history and of the Supreme Court interpretation of both clauses. Madison, who is known as the “Father of the Constitution” and who understands the original intent of the Founders regarding the true meaning of the “general Welfare” clause, delivered a severe warning to the first U.S. Congress regarding the unbridled power of the Federal government should Congress ever violate the original intent of this clause:

If Congress can apply money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may establish teachers in every State, county, and parish, and pay them out of the public Treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may undertake the regulation of all roads other than post roads. In short, everything from the highest object of State legislation, down to the most minute object of police, would be thrown under the power of Congress; for every object I have mentioned would admit the application of money, and might be called, if Congress pleased, provisions for the general welfare.

Here’s another great quote from Madison on this topic:

With respect to the two words ‘general welfare,’ I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.

For Further Study

Obamacare, Up Close & Personal – Joel M. Killion

On March 9, 2010, before the 2010 Legislative Conference for the National Association of Counties, former Speaker of the House Nancy Pelosi said, “…We [Congress] have to pass the [health care] bill so that you can find out what is in it…” Well, the 2700-page Patient Protection and Affordable Care Act, since it’s passing in March 2010, has been and is being peeled away, layer by layer, and what we are finding is affirming what we’ve always known.

Consider the following:

  1. Twenty-eight states have filed lawsuits against the federal government regarding Obamacare’s threat to the Constitution and their own state budgets.[1] They know Obamacare will harm them by increasing “state government obligations for Medicaid by expanding Medicaid eligibility and introducing an individual health insurance mandate for all U.S. citizens and legal permanent residents.”[2]
  2. On September 8, 2009, Judge Andrew Napolitano asked South Carolina Congressman James Clyburn (the third ranking Democrat in the House of Representatives), “Where in the Constitution is the Federal Government charged with maintaining people’s health?” Clyburn responded, “Well, it’s not in the Constitution. There’s nothing in the Constitution that says the Federal Government has got anything to do with most of the stuff that we do…”[3] Moreover, on October 22, 2009, a CNS News reporter asked the then Speaker of the House, Nancy Pelosi, “Madam Speaker, where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?” Speaker Pelosi responded, “Are you serious? Are you serious?” The reporter answered, “Yes, yes I am.” Later, Speaker Pelosi’s press spokesperson, Nadeam Elshami, told CNS News that its question was “not a serious question.”[4] Question: What does this say about the Liberal paradigm toward America’s founding documents?
  3. “So far, over 1400 annual limit waivers have been issued…The waivers cover nearly 3.1 million individuals, or 2 percent of those with private insurance. Of the plans seeking waivers, more than half are union plans, covering 1.55 million people.”[5] Question: If Obamacare is great for all Americans, as we’ve been told, why are so many receiving waivers?
  4. Thirty to fifty percent of businesses are planning on exiting out of employer-sponsored insurance after 2014 because the employer mandates are simply unbearable.[6]
  5. Obamacare “will increase taxes by more than $569 billion between now and 2019, and the burdens it places on business will significantly reduce economic growth and employment.”[7]
  6. Under Obamacare, individuals must “either purchase a government-prescribed health insurance policy or pay a penalty.”[8] This means that the millions of Americans who are happy with their current health insurance plan will not be able to keep it. And how will this be executed? Well, “The Obama administration is quietly diverting roughly $500 million to the IRS to help implement the president’s healthcare law.”[9]
  7. On September 9, 2009, President Obama told us his “Affordable” Care Act “will cost around $900 billion over ten years.”[10] Then, in March 2012, the Congressional Budget Office informed us that Obamacare will actually cost us $1.76 trillion – nearly twice the original amount.[11] Now, we have learned that “…Obamacare will force taxpayers to find another $17 trillion to pay for Obamacare’s spending…”, which “when combined with existing Medicare and Medicaid funding shortfalls, leaves taxpayers on the hook for an extra $82 trillion over the next 75 years. The federal government already owes $15 trillion in debt, including $5 trillion in funds borrowed during Obama’s term…”[12]
  8. When Obamacare was signed into law, we were told that the more Americans learned about it, the more they would like it. But, according to the Huffington Post’s healthcare poll, which averages 266 separate polls, in March 2012, 50% of Americans disapproved of Obamacare, while 41% approved; moreover, the majority of Americans have opposed Obamacare since June 2009, ten months before Obamacare was signed into law (Pollster.com).
  9. “…Before the highly publicized hearing on the constitutionality of President Obama’s health care law, ratings for the U.S. Supreme Court had fallen to the lowest level ever measured by Rasmussen Reports [at 28%]. Now, following the hearings, approval of the court is way up [at 41%].”[13] Also, only 15% of likely U.S. voters agree with President Obama’s cautioning of the U.S. Supreme Court’s possible overturning of his health care law.[14]

Fortunately, for America, the silent-majority has been doing its homework, questioning their leaders with boldness and respect, and holding them responsible, while spreading the word to their neighbors, friends and family. Truly, it is an intelligent, informed electorate who will ultimately right this wrong. As Thomas Jefferson wrote, “If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be.”

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