Author Archives: Guest Poster

Guest Post: A Five-Part Plan For Fixing America’s Health Care System

Today’s post was written by regular commenter Dr. Gregory Tetrault (aka “Dr. T”). Dr. Tetrault is a clinical pathologist who has directed four different medical laboratories since 1989. He was an Associate Professor of Pathology and Laboratory Medicine at the University of Tennessee Medical Center until 2009. His plan below is, IMHO, a realistic way to introduce crucial market-based reforms into our medical system while still maintaining a social safety net. Enjoy!

Health care costs have increased far faster than the general rate of inflation for decades. The most important cause was the transition from out-of-pocket payments for routine medical care (common in the early 1960s) to employer-based or government-based insurance or health maintenance organization (HMO) coverage. This produced price insensitivity among consumers, who believed that their insurance premiums paid for all the medical care as they wanted, and allowed medical costs to rise rapidly. We cannot rein-in health care costs without making drastic changes to our health care payment systems. My five-part proposal, if implemented, could reduce health care costs.

  1. Dissociate health insurance from employment.

    Employers don’t provide home insurance or vehicle insurance. They should not provide health insurance, either. A disadvantage of the current situation is that workers with chronic health problems become tied to their employer—if they switch employers their new health care plan typically will not cover their existing medical problems. Another disadvantage of the current situation is that most employers offer only a few health insurance options. Workers who opt out rarely get fully reimbursed for what the employer would contribute, cannot deduct health insurance premiums from their income taxes, and usually pay more for health insurance because they aren’t in a group plan.

  2. Require all adults to either purchase catastrophic health insurance for themselves and their dependents or provide proof that they can afford a moderately expensive hospital stay.

    This proposal is similar to the requirements in most states that all vehicle owners buy insurance or provide proof that they can pay for damages. The requirement violates libertarian principles, but it is necessary because clinicians and hospitals must provide medical care even if the ill or injured patient cannot pay. A fully libertarian approach would mean refusing to care for patients who cannot recompense providers at a mutually acceptable price. We aren’t ready for that much libertarianism.

  3. Require health insurance companies to accept all customers (no cherry picking) with only moderate stratification of premiums based on age and controllable risk factors (such as smoking).

    Insurers and others apparently forget that the purpose of insurance is to spread the costs of catastrophic events across the pool of insured persons. Insurers should not be classifying, sub-classifying, and sub-sub-classifying individual risks before calculating premiums. They should lump similar persons into large groups and charge everyone in each group the same premium. Example groups: 40- to 49-year-old male non-smokers, 20- to 29-year-old female smokers, 0- to 5-year-old children, etc. As an incentive for healthy behavior, insurers could offer discounts to those who can prove they are fit and in above-average health.

  4. Give a tax credit for health insurance premiums based on the cost of a minimal coverage policy to lessen the financial impact on the lower middle-class.

    This credit would replace the tax-deduction given to employers who provide health insurance to employees. The credit is capped at the cost of the minimum required health insurance plan to prevent large tax credits for those who buy expensive, low-deductible or full-coverage insurance.

  5. Create a taxpayer-funded (or, better yet, a charity-funded) health insurance voucher program for low income persons.

    This would replace Medicaid. Eligible persons would choose a health insurance provider and a coverage plan and use vouchers to pay all or part of the premiums. The eligible persons would be responsible for their out-of-pocket health care expenses, but health care providers could offer discounts, delayed payment plans, or free care (something that is not allowed under current Medicaid and Medicare rules).

This five-part proposal will give workers bigger paychecks (no employer health insurance deductions) and return most routine care to an out-of-pocket payment system. The mandatory catastrophic health care insurance will prevent bankruptcies after serious illnesses or injuries. The proposal allows people to purchase however much health insurance they desire from HMOs, preferred provider organizations (PPOs), or other types of plans. Implementing this proposal would make people aware of the full costs of health care services. Some people will refuse expensive care or negotiate lower charges. Such actions will reduce overall health care costs.

Businesses will be pleased because this proposal reduces operating costs: no administrative personnel will be needed for handling employer-based health insurance. Productivity would rise slightly because employees would not spend working hours choosing employer-provided health insurance plans or solving problems related to health insurance claims.

Health care providers will experience reduced billing costs because most people will pay directly for routine medical care, dentistry, prescriptions, laboratory tests, and imaging studies such as x-rays and simple ultrasound exams. Elimination of Medicaid with its poor reimbursement and excessive documentation requirements will greatly benefit many providers.

The losers if this proposal is implemented are: employees who work in health insurance benefits subdivisions of businesses, government bureaucrats who hoped to control the health care economy, and advocates of ‘nannystate’ government who believe that Joe and Jane Average are incapable of making health care financial decisions lose. The winners outnumber the losers by at least 1,000 to 1.

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Point: You Cheering In The Streets Is No Different Than When They Do It

The following is a continuation of The Liberty Papers’ “Point/Counterpoint” series. In this feature, two contributors (or, as in this case, a contributor and a guest) of semi-like mind debate a specific point of view. Today’s Point is provided by regular reader and commenter Jeff Molby, who wrote in response to a friend and offered to submit it here as well. Tomorrow Brad Warbiany will present a Counterpoint (now available here).

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After posting a Facebook link to this article which disapproves of the American jubilation in response to the news of Osama’s death, a friend of mine made the following comment:

“There is a BIG difference between groups cheering when innocent Americans have been killed and cheering when the person responsible for killing those same innocent Americans has been killed.”

Before I go any further, I want to make it clear that I don’t condone any of the violent acts by either side. I condemn our efforts to install and arm puppet governments. I condemn the terrorist attacks. Both have been going on so long that I don’t even give a damn which one “started it”. Like a couple of pissed-off five year-olds, you either have to send them both to their rooms or step back and let them duke it out.

Personally, I think we’re way overdue for some de-escalation. I understand that many others think we need to do just the opposite, but for the purposes of this conversation, we can just agree to disagree on that point.

My only point in all of this is that this is an old, nasty conflict and there’s a ton of blood on everybody’s hands. It’s been many decades since we’ve had any sort of moral high ground when it comes to our involvement in the Middle East. 9/11 could have changed that if we had responded magnanimously, but instead we resorted with the same base reactions that we condemn our enemies for.

You’ve probably noticed that I haven’t acknowledged that the civilians killed in the towers were “innocent” and therefore different. In a way, they were. In a way, they weren’t. You can call them innocent because most of them never touched a gun in their lives and wished no harm on anyone. At the same time, though, our government has done much harm in our name and here is the double-edged sword of democracy: we elect our government and we are responsible for its actions.

Do you know who was the last President that didn’t engage in overseas warfare? Hoover. The last 13 Presidents and 44 Congresses — with every permutation of Republicans and Democrats you can imagine — have all steadily cultivated the military-industrial complex that has shed the blood of innumerable innocent individuals that we blithely refer to as “collateral damage”.

At every step, we rationalize it. It’s easy to do and we have to do it; we’d be unable to consider ourselves human if we didn’t. “We do our best to minimize ‘collateral damage’, but it’s impossible to avoid it completely and we have to kill them before they kill us.”

It sounds good and logical until you confront the fact that our enemies use the same rationalizations. They look to their lost fathers and mothers and seek vengeance just as we do. They look upon the deaths of enemy non-combatants with the same feelings of righteous self-defense and inevitability. They feel they have to kill us to protect themselves.

And so we swim in the bloodiest of whirlpools.

So were the 9/11 victims innocent?

Lest anyone try to twist my words, let me be absolutely clear that the responsibility for the 9/11 attacks lies entirely with the perpetrators of those attacks. That does not make us innocent bystanders, though. We choose our representatives and give them a ton of money with which to do our bidding. We are responsible for the countless civilian deaths that our government has caused over the decades. You. Me. The 9/11 victims. Every American old enough to work and vote. It takes hundreds of millions people working together to great the largest killing machine the world has ever known. We did it together and most of us were proud of it every step of the way. Many of you are probably furious with me right now because you’re still proud of the weapon we’ve created.

I’m not saying we’re the Bad Guys. I’m just saying we’re not the Good Guys either. We’re simply active participants in a Hatfield-McCoy-esque feud whose root cause is long since forgotten. We’re wrapped up in a nasty affair with enough blood to cover everyone’s hands.

As I said earlier, I think it’s past time for the violence to come down, so I can’t share in the celebration of another death. For those of you that disagree, I understand your viewpoint and I won’t begrudge you your victory celebration. I just want you to realize that it’s no different from the celebrations your enemies hold when they win a battle.

GUEST COLUMN: Racial minorities and socio-economically disadvantaged targeted for eminent domain abuses in Alabama

BY DAVID BEITO

What is happening in the cradle of the modern civil rights movement?   Jimmy McCall would like to know.  ”It was more my dream house,” he laments, “and the city tore it down….It reminds me of how they used to mistreat black people in the Old South.”  In 1955, Rosa Parks took on the whole system of Jim Crow by refusing to give up her seat on a segregated Montgomery bus.  Today, McCall is waging a lonely battle against the same city government for another civil right: the freedom to build a home on his own land.

Although McCall’s ambitions are modest, he is exceptionally determined.  For years, he has scraped together a living by salvaging rare materials from historic homes and then selling them to private builders.  Sometimes months went by before he had a client.  Finally, he had put aside enough to purchase two aces in Montgomery and started to build.  He did the work himself using materials accumulated in his business including a supply of sturdy and extremely rare longleaf pine.

McCall only earns enough money to build in incremental stages but eventually his dream home took shape.  According to a news story by Benjamin Solomon, the structure had a “the high slanted ceilings, the exposed beams of dark, antique wood.  It looks like a charming, spacious home in the making.”  But from the outset the city showed unremitting hostility.  He has almost lost count of the roadblocks it threw up including a citation for keeping the necessary building materials on his own land during the construction process.  More seriously, he was charged under the state blight law, which allows a municipality to designate a building as a “public nuisance” and then demolish it.  Critics have accurately called this “eminent domain through the back door” and warn that opportunities for abuse are almost limitless.  In contrast to the standard eminent domain process, for example, property owners do not have any right to compensation, even in theory.  » Read more

Treatise on Property Tax Through Fiat Currencies

Below, please enjoy a guest article by Clayton Slade. Clayton is in the information technology field by trade, but has been an economics/finance buff for most of his life, as well as a believer in liberty and the free market.

Clayton’s article succinctly explains a rather complex concept rarely discussed, the effect of inflation as a tax on all those who hold dollars, both domestically and abroad.

As always, feel free to discuss in the comments. Clayton can be reached at clayton.slade@gmail.com.

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Treatise on Property Tax Through Fiat Currencies
By Clayton Slade

Property Tax
The United States has a property tax that applies to the entire world. In fact, all countries with fiat currencies do, but the extent to which they can tax is directly related to the distribution of currencies in circulation. This tax is called a fiat property tax. The tax rate varies between different currencies.

First, it must be understood that at any given moment, there is a finite total value of resources and services. Second, there is a total amount of currencies in the world, which can be manipulated. These two values form a ratio of Currency:Stuff. If more of a currency is created, such as new federal reserve notes, the total economic value of everything is not increased; this merely increases the currency side of the ratio, meaning that in the long run, it takes more currency to get the same amount of stuff. This amount of time is the response time or lag time of the market to realize the increased currency.

When more federal reserve notes (FRN) are created, the ratio of FRN:Stuff shifts accordingly, making it take more FRNs to get stuff. This means that each individual FRN is worth less than it was originally. The value of the “new” FRNs is derived from taking value away from the original FRNs. This is true for all fiat currencies when the quantity of a given currency in circulation increases.

The devaluing of each FRN is more than mere inflation. This is a property tax. It takes value away from assets, in this case currency owned by the holder, and redistributes it to the entity that creates the new notes (e.g., the Federal Reserve). Whomever has the power to create new currency inherently has the power to tax anyone and everyone who is holding that currency.

History
When the United States used the gold standard, people saw the US dollar as a sanctuary. The dollar was no more than a receipt (certificate) for a certain weight of gold, and the gold was protected in a safe location, which allowed the dollar to permeate throughout the world. When we moved off the gold standard domestically, we still met our obligations for foreigners who had gold certificates, and we also used relatively responsible monetary policies. This kept foreigners comfortable with using the US dollar.

At the same time, a very real economic boom after WW2 made the United States rich and a marketplace that other nations want to sell to. When the United States imports, it also exports federal reserve notes, which further serves to spread FRNs to all parts of the world. Some other consequences of WW1 and WW2 were that the borders in the Middle East were redrawn, and other political changes ensued that, for better or worse, involved making the US dollar the currency used in all major petroleum transactions. If anyone wanted to buy oil from Iran, Iraq, Saudi Arabia, etc, they first had to buy US dollars (now FRNs) on the foreign exchange market.

As a consequence. the world has been saturated with dollars, and then federal reserve notes, during the past century.

Real World
When the federal reserve creates new notes, it steals value from all existing notes. Since many existing notes reside outside of the United States, the property tax effect applies to anyone holding a FRN. This is a property tax on all notes that exist, and thus, the world.

When this newly taxed money is spent domestically, there is a net benefit to the United States. This has worked well for 30-50 years and is one reason why the trade deficit is not so bad. Money flows out of the country, but the value of it is then just taxed right back when new money is created. One must also consider that this is a tax on holdings, and not just cash flows. A country such as China that possesses a large quantity of federal reserve notes and treasury securities is taxed not only on the trade deficit, but also the notes from all previous trade deficits that are still held by the country.

Downfall
That sounds great, right? The United States gets to tax the whole world and spend it in ways that benefit itself! All moral issues aside, it would be wonderful if this could be done forever. However, other countries are not stupid and are wising up to this.

This most recent round of bail outs (paid for by fiat property tax) in the financial markets (sub prime, etc) is really waking people up. Take a look at the dollar against other competing currencies or even gold and silver. On it’s present course, the FRN will not be able to maintain reserve currency status much longer.

It seems like every year or two, another oil producing country moves away from the FRN in favor of other currencies that are destroying themselves slower. Most notably, Iran has been switching to Euro and Yen for oil transactions.

Effectively, all fiat money has a property tax rate associated with it. This system of fiat property tax only works when people are willing to accept a given currency. They have to either be naive to what is going on (general public), accepting it because it is the best option available (central banks, foreign governments, investors), or coerced (OPEC?). The Europeans are destroying (taxing) their currencies in order to help their exports, but they are doing it slower than the United States, making the Euro and £ the current better choice for maintaining value. This is why treasuries, central banks, regular banks, etc are shifting away from the federal reserve note to currencies such as the £, Euro, and gold – the fiat property tax rate is lower with those currencies.

It is a fragile system. Once the international community stops accepting federal reserve notes, the decline will be rapid. The decline may have already started. Depending on how widespread this rejection and decline is, the United States could experience massive inflation (WW2 Germany style).

Solutions
There are a only few ways to stave off a total rejection of the federal reserve note. One way is more conservative fiscal policies in congress that involve balanced budgets.

The other is to float some sort of commodity based currency that forces the value of individual currency units to be finite and relatively unchanging true value over time. If an option like this were adopted, it would be key for the new currency to be issued in a “natural” and non-obligatory manner in order to not shock financial markets. One such way would be to simply allow such currencies to float freely on the foreign exchange markets. If consumers of currencies wish to use that currency as a sanctuary, such as the dollars of old, they should be free to do so in a liquid manner.

The United States and some other super powers have had the luxury of a lifestyle that is subsidized through the taxation of the world with the practice of fiat property tax. One way or the other, those who currently are accustomed to the benefits of this system should begin to wean themselves off of it on their own terms as more and more people and organizations realize how this system works and refuse to participate.

Seigniorage is alive and well. Why should someone choose to hold federal reserve notes if there is an alternative that has a lower tax rate?

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Aside: There is probably only one candidate running for president who is concerned about this or even understands the situation. That person is Ron Paul. If someone does not understand how taxation through inflation works, they should not be president.

All conservatives, especially rich ones and those who would like to become rich, should be opposed to this system. It is a progressive tax that directly attacks savings, affecting those with more cash more than those with less. Such a property tax is contrary to conservative or libertarian principles. Anyone who wants to save money should be opposed to this.

This is a tax just like any other. The only difference is that congress does not have to pass a bill to raise or lower the tax rate and the general public does not even know what the rate is. It is meaningless to focus on marginal income tax rates, capital gains, dividend tax, etc while at the same time the government can tax all the money it needs regardless. And they do not even have to ask you for a dime. They simply confiscate it from your bank account.

“You Like Europe’s Health Care So Much? Then Go Live There”

I use the above phrase to attack socialized medicine a lot. I’m not trying to be hostile or sarcastic when I say this. I’m not trying to convey an “America…love it or leave it” type message, nor am I interested in cutting off the debate about the problems with health care in this country, which I agree do exist. I say this to people who try preaching the doctrine of universal health coverage (or, more accurately, socialized medicine) because, frankly, I believe that the best counter-argument to their ridiculous proposal is for those people to go live for a few years in a country that has socialized medicine (as I did) so they can see for themselves what a horrifically bad idea it is.

To fill in the gaps a bit, I’m UCrawford. I’m a libertarian (small-l) from Wichita, Kansas and a guest poster here. Until 2006 I spent 10 years as a member of the United States military, just under six of them stationed at a small base in northern England (five if you don’t count a short vacation I took to Afghanistan on the Army’s dime). Due to the fact that the base I was on was both small and rather remote from any other U.S. bases we ended up falling between a lot of administrative cracks, most of which aren’t worth going into here, which often led to problems with funding. Needless to say, the U.S. government was often forced to improvise to provide quality of life services for us at a reasonable rate, so one of the solutions they came up with (since the closest base with medical services was 4-5 hours away) was to arrange to have all of our health care provided by Britain’s National Health Service (NHS). That decision provided all of the military personnel on our base with the unique experience of living under a system of socialized medicine that Michael Moore recently held up as among the best in the world. That decision also made it unlikely that anyone stationed at our base will ever end up in one of Moore’s little press conferences singing the praises of socialized medicine…the experience was terrible.

My first indication that something shady was up with our medical care came in my first year when I went into our base clinic (staffed by two NHS doctors) with a chest cold, only to be told that my cold was likely “viral” and wouldn’t require antibiotics. That in itself wasn’t really so odd. We worked in a close environment and doctors aren’t supposed to prescribe antibiotics for viruses. Except that after talking to other people on the base I eventually came to realize that about 90%+ of the people who went in with colds were told the same thing. I’m saying “90%+” because in the three years where the NHS staffed the clinic unchecked nobody I met on the base (I knew almost everyone and we all got sick at least once or twice a year because of the climate) could actually identify anyone who had been diagnosed with a non-viral cold or had received antibiotics for said cold. I’m not willing to bet there weren’t at least one or two in three years, although I never ran across any of these people. My platoon sergeant certainly wasn’t one of them. He later came down with severe pneumonia as a result of his untreated non-viral cold. I couldn’t figure out why this skinflint attitude towards medicine was happening, until I talked to my uncle (a doctor who had studied in Scotland for awhile) and he told me about the key to many of socialized medicine’s problems…controlling costs. More on that in a second.

The cost controls took a variety of forms at my base, ranging from the merely annoying (as when our base physician refused to order x-rays unless you had a bone sticking out of your arm), to the mildly amusing (as when the local hospital refused to admit our First Sergeant’s in-labor wife, forcing her and her husband to deliver the child in their car on the drive home), to the ethically questionable (as when one of my soldiers was discharged with a severe case of appendicitis on the grounds that surgery would be too expensive), to the medically indefensible (as when my best friend’s girlfriend nearly died because the hospital didn’t bother to check her for internal bleeding after a very complicated miscarriage). For the first couple of years, I thought it was because our area had the most incompetent doctors in Britain. Eventually I realized that the problems we had in our area were pretty much standard in comparison to the rest of the country (or compared to any country that uses socialized medicine). And the reasons for that are pretty simple.

Basically, the NHS’s “free” medical system isn’t really free at all, which shouldn’t be a surprise to anyone who doesn’t believe in magic money. It’s funded by taxes…income taxes, corporate taxes, capital gains taxes, property taxes, and hidden taxes (revenue generated for the national government from things like Value Added Tax, speed cameras, fuel taxes, and congestion charges that you often don’t notice or think of as taxes unless you’re paying attention). In exchange for all these taxes, the British government provides lots of services for the taxpayers like public transportation, a pension system, and socialized medicine, often at subsidized rates which has several regrettable effects:

1) It makes unobservant people who don’t understand economics think they’re getting a great deal by giving them medical treatment at a superficially low price, which
2) Pretty much insures that low-cost private alternatives don’t develop (since it’s tough to compete with “free”), which
3) Removes any incentive for the health care users to try and save costs by limiting their use since they see health care as a free (as opposed to “free”) entitlement, which means that
4) Demand for services often outpaces the ability of tax revenue available to pay for those services.

When these things happen government is then forced to find new streams of revenue to pay for the additional demand (more taxes). And when they can’t find more revenue or raise taxes any higher, they’re forced to control costs by reducing services where they can, by doing things like telling their doctors to prescribe less drugs, or understaffing medical facilities, or extending wait times for surgeries and consults (unless you’re willing to be extorted, of course), or starving terminal patients to death against their wishes, or skimping on oversight to insure that their doctors aren’t serial killers. Basically, when it comes to a choice between quality of care for patients or saving a buck, government-run health care will choose the money, same as socialized medicine proponents accuse private industry of doing. They’ll just offer you a lot less in return.

Unsurprisingly many Britons I knew had very little faith in the NHS’s commitment to excellence. Unsurprisingly many Britons I knew chose to pursue private routes to get medical treatment where it was available. Unsurprisingly, it was usually very expensive (partly because they were still paying taxes for a health care system they no longer used). Fortunately for us, after my soldier had to be medevac’d to the distant military hospital to get his appendix out, that base saw fit to provide our base with military doctors who had the authority to override the recommendations of the NHS doctors , and with the support of our command they enabled us to get access to private clinics in the local area more often. Frankly, I’d say that getting us away from government health care was one of the best things our government ever did for us. And if our politicians want to do the right thing by us back here in the States, they’ll do everything they can to stop socialized medicine from popping up here.

Point: The Constitution Is A Living Document

In the United States, a document–the Constitution of the United States, the Supreme Law of the Land–binds us, the people, when we are granted citizenship. By becoming citizens of this great nation, we assure ourselves the protections outlined by this document. Unfortunately, many citizens forget these inalienable rights.

However, there are some that have not. There are still many scholars of the Constitution and between these informed citizens there is a debate that has raged since the days after the Civil War. This debate–the debate over the elasticity of the Constitution–is a healthy discourse that defines the heart of the American philosophy. On one side of the debate, there are scholars that declare that the Constitution is rigid, that only a strict interpretation of the Constitution is acceptable. Supreme Court justices such as the late Chief Justice Rehnquist and constitutional scholar Ron Paul support this argument. On the other side, though, many scholars also say that the Constitution is a “living document” that has a certain amount of elasticity to it. Again, several Supreme Court Justices and constitutional scholars agree with this point of view. So, who is right?

While the “strict interpretation” argument has several solid points, I believe that the evidence falls heavily in the favor of the “living document” argument. The legal system in the colonies, the words of the framers, the fears of the Constitution’s opponents, the Supreme Court’s solidification of its own power and even the framework of the Constitution all point to a “living document.”

However, before I delve into details about each one of those evidence points, I must point out that “living document” is unjustly correlated with “judicial activism.” Judicial activism is a situation where a judge tries to impose his own political views into a ruling–usually by completely disregarding any acceptable ruling logic. Thus, any judge, whether she has a “strict constructionist” or “living document” view, can be a “judicial activist.”

The first point to be made to support the living constitution rhetoric is that the colonies all had legal systems that were similar to the Great Britain legal system. In Great Britain, citizens were protected under the Magna Carta. This British “bill of rights” was a document that is not unlike our own Bill of Rights, though it was less extensive and less restrictive on the British government. However, there was a practice in Great Britain that was called “Common Law.” This law was flexible law that was aggregated by using all of the court cases to determine what is lawful and what is not. The Founders practiced this sort of flexible law in the colonies and, afterward, in the states. It is reasonable to say that they expected the Federal government’s legal system to act in much of the same way.

The Framers are also on record describing the powers of the judicial branch. Alexander Hamilton wrote in Federalist No.78 that “exercise of judicial discretion” is the “province of the courts” of which he gave a specific example of “two contradictory laws” where the courts have the power “to liquidate and fix their meaning and operation.” This “province of the courts” to “exercise judicial discretion” sounds familiar to the Common Law practices of the colonies and Britain, as discussed before.

The opponents of the Constitution wrote a series of letters that are now in a collection called the “Antifederalist Papers.” These letters were written to oppose the Constitution and are useful in attempting to discover what the Founders feared about the Constitution and government in general. It can also be used to determine the intent of the Constitution, as the arguments written in these letters elaborate on each part of the Constitution more than the Constitution does itself! In Brutus 5, one of the opponents of the Constitution declared:

    In the 1st article, 8th section, it is declared, “that 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.” In the preamble, the intent of the constitution, among other things, is declared to be to provide for the common defence, and promote the general welfare, and in this clause the power is in express words given to Congress “to provide for the common defence, and general welfare.” — And in the last paragraph of the same section there is an express authority to make all laws which shall be necessary and proper for carrying into execution this power. It is therefore evident, that the legislature under this constitution may pass any law which they may think proper.

He argued that the Congress would have power to do what it wished with the elastic clause (which, sadly, has not been restricted and Brutus has been proven correct). This is evidence that the founders intended for the document to have some elasticity.

In 1801, John Marshall was appointed Chief Justice of the Supreme Court. Before his appointment and during his first two years as the nation’s top Justice, the Court had no real power. The Court’s decisions reached no further than the individual cases which were brought before it. However, Chief Justice Marshall changed that in Marbury v. Madison, 1803. In this case, Marshall declared that the judiciary branch has the power of judicial review–the same concept that was exercised in state judiciaries as well as in the judiciaries of the colonies. This power was not directly outlined by the Constitution but it was declared shortly after the Constitution was ratified and it was during the times of the founders. To my knowledge, not one of the Founders criticized the decision (though, Jefferson was angry. But, it was for different reasons other than Constitutionality).

For my final point of evidence, the framework of the Constitution itself creates an aura of openness and flexibility. The words of the Constitution are very vague. In some instances, certain powers are left open to interpretation–the judicial branch had nearly no direction from the Constitution! Also, the Bill of Rights weren’t properly ratified and added to the Constitution until 1791! The vagueness of the Constitution can be seen when compared to other constitutions. For example, the length of the Constitution, in words, is 4,543. By comparison, the South African Constitution has over 50,000 words! By all counts, the South African constitution is specific while the United States Constitution is vague. The vagueness of the United States Constitution leaves for flexibility in the government.

The Constitution is a living document. However, I must stress that a living document does not mean that the government has free reign to do what it wishes! Instead, power must stay consolidated with the people, as was the intent of the Founders, and the people are the only ones that should be able to relinquish their power to the government. The government should not direct the lives of people nor should it abuse the flexibility of the Constitution. Instead, I believe that the Constitution’s flexibility should be considered minor leeway for the Congress instead of a free-ranging usurpation of power from the people. Major changes to the Constitution should not be, and cannot be, overruled by the laws of Congress. Instead, amendments should be made in order to change the Constitution itself.

Also, the Commerce Clause and the Elastic Clause are being abused by the Congress and the federal government. In the 9th and 10th amendments, the powers that are not enumerated to the Congress are reserved to the states and, ultimately, the people. Universal healthcare does not “promote the General Welfare,” it enforces it! Such a law would restrict the freedoms of the people–the very freedoms that are reserved to the people. Congress does not have the authority to do this even under a living Constitution.
As one last point, whether the Constitution is a living document or not is a great argument to research and learn about. Many scholars would disagree with me on my stance that the Constitution is a living document. In fact, most of my conservative friends would completely disagree with me. However you feel, though, I think that promoting such a discussion is beneficial for all. No matter whom is right, we all win; we win back the defining principle that makes Americans uniquely American: public discourse. If we don’t fight for our Constitution, living or dead, it will slowly disappear into oblivion. None of us want that.

From Guest Blogger Derek Hammer