----- Original Message -----

From: Devvy Kidd

Sent: Wednesday, September 16, 2009 5:22 AM

Subject: Judge Napolitano/Health-Care Reform and the Constitution

"Last week, I asked
South Carolina Congressman James Clyburn, the third-ranking Democrat in the
House of Representatives, where in the Constitution it authorizes the federal
government to regulate the delivery of health care. He replied: "There's
nothing in the Constitution that says that the federal government has anything
to do with most of the stuff we do." Then he shot back: "How about
[you] show me where in the Constitution it prohibits the federal government
from doing this?"

Rest at link

http://online.wsj.com/article/SB10001424052970203917304574412793406386548.html

By ANDREW P. NAPOLITANO

Last week, I asked South Carolina Congressman
James Clyburn, the third-ranking Democrat in the House of Representatives,
where in the Constitution it authorizes the federal government to regulate the
delivery of health care. He replied: "There's nothing in the Constitution
that says that the federal government has anything to do with most of the stuff
we do." Then he shot back: "How about [you] show me where in the
Constitution it prohibits the federal government from doing this?"

Rep. Clyburn, like many of his colleagues,
seems to have conveniently forgotten that the federal government has only
specific enumerated powers. He also seems to have overlooked the Ninth and 10th
Amendments, which limit Congress's powers only to those granted in the
Constitution.

One of those powers—the power "to
regulate" interstate commerce—is the favorite hook on which Congress
hangs its hat in order to justify the regulation of anything it wants to
control.

Unfortunately, a notoriously tendentious New Deal-era
Supreme Court decision has given Congress a green light to use the Commerce
Clause to regulate noncommercial, and even purely local, private behavior. In Wickard v. Filburn (1942),
the Supreme Court held that a farmer who grew wheat just for the consumption of
his own family violated federal agricultural guidelines enacted pursuant to the
Commerce Clause. Though the wheat did not move across state lines—indeed,
it never left his farm—the Court held that if other similarly situated
farmers were permitted to do the same it, might have an aggregate effect on
interstate commerce.

James Madison, who argued that to regulate
meant to keep regular, would have shuddered at such circular reasoning.
Madison's understanding was the commonly held one in 1789, since the principle
reason for the Constitutional Convention was to establish a central government
that would prevent ruinous state-imposed tariffs that favored in-state
businesses. It would do so by assuring that commerce between the states was kept
"regular."

The Supreme Court finally came to its senses
when it invalidated a congressional ban on illegal guns within 1,000 feet of
public schools. In United States v. Lopez (1995), the Court ruled that
the Commerce Clause may only be used by Congress to regulate human activity
that is truly commercial at its core and that has not traditionally been
regulated by the states. The movement of illegal guns from one state to
another, the Court ruled, was criminal and not commercial at its core, and
school safety has historically been a state function.

Applying these principles to President Barack
Obama's health-care proposal, it's clear that his plan is unconstitutional at
its core. The practice of medicine consists of the delivery of intimate
services to the human body. In almost all instances, the delivery of medical
services occurs in one place and does not move across interstate lines. One
goes to a physician not to engage in commercial activity, as the Framers of the
Constitution understood, but to improve one's health. And the practice of
medicine, much like public school safety, has been regulated by states for the
past century.

The same Congress that wants to tell family
farmers what to grow in their backyards has declined "to keep
regular" the commercial sale of insurance policies. It has permitted all
50 states to erect the type of barriers that the Commerce Clause was written
precisely to tear down. Insurers are barred from selling policies to people in
another state.

That's right: Congress refuses to keep
commerce regular when the commercial activity is the sale of insurance, but
claims it can regulate the removal of a person's appendix because that
constitutes interstate commerce.

What we have here is raw abuse of power by
the federal government for political purposes. The president and his colleagues
want to reward their supporters with "free" health care that the rest
of us will end up paying for. Their only restraint on their exercise of
Commerce Clause power is whatever they can get away with. They aren't upholding
the Constitution—they are evading it.

Mr. Napolitano, who served on the bench of
the Superior Court of New Jersey between 1987 and 1995, is the senior judicial
analyst at the Fox News Channel. His latest book is "Dred
Scott's Revenge: A Legal History of Race and Freedom in America" (Nelson,
2009).

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