“Would you eat a piece of cheese with mold on one part while the rest is good? Would you eat the entire thing, mold and all, just because the rest is good for you, or would you cut away the moldy part and eat only the good? Most rational, clear-thinking people would choose the latter. The same must be done with a law that has one unconstitutional part; it can't be allowed to go into effect in its entirety; the illegal part must be cut off!”
"An Address to Friends and Countrymen on the H.R.3590 - Patient Protection and Affordable Care Act"
For those of you do not have much knowledge concerning the American Revolution era, the 1760s and early 1770’s were what is known as the pre-revolutionary years of the American colonies, also known as the years of imperial debate/imperial crisis, where the American colonies were consistent and adamant about asserting, protecting, and preserving their rights are Englishmen and as members of the British Empire. Their liberties were attacked by what they termed an arbitrary Parliament, one which had American rights and liberty as it prime target in its campaign for more power and authority, power and authority not granted to it by the English Constitution, according to the Americans. Parliament’s campaign for arbitrariness and power consisted of many attempted abridgements of American rights and liberty. One such attempt by Parliament, which brought the whole of the American colonies into the fray, was the Stamp Act. The Stamp Act was not the first of such attempts, but it was the first major one where the colonies united in opposition to an arbitrary and tyrannous Parliamentary act, one that would result in the loss of American rights and liberty, and would subject Americans to will the slavish masters in Parliament, encircling them and fettering them with the chains of slavery, from which they would not be able to escape if Parliament and it’s despotic Stamp Act were allowed to prevail. One leading voice in opposition to the Stamp Act was Pennsylvania lawyer, John Dickinson. Dickinson has been labeled by historians as a “conservative revolutionary” or a “reluctant revolutionary,” due to his abhorrence of violence and tumult, as well as his infamous stance of opposition toward Independence in the sessions of Continental Congresses in 1776, when John Adams proposed a vote for Independence from Britain. Dickinson opposed Independence at that time because he naively trusted that the King and Parliament of Great Britain would see the error in their ways after having seen America’s firmness in opposition to it’s tyrannous acts, such as the Boston Port Bill, and would seek conciliatory measures. Dickinson also opposed the rashness of such a vote on Independence, due to the lack of foreign military and financial help at the time of the actual vote, and indeed, the very need of relying on foreign assistance. As a result of his stance, he was the only delegate to the Continental Congress to have not signed the Declaration of Independence. But, rest assured John Dickinson was indeed a patriot and a lover and forever defender of American rights and liberty, whether it came from Great Britain or from some other power. Dickinson was among the first of those early patriots to stand in opposition to the arbitrary and despotic acts of the English Parliament, and was one of the most consistent in his peaceful, yet firm opposition to English tyranny. Thus, in 1765, he wrote a defense of American liberty and the right of America to enact and vote upon their own taxation, championing the cause of “no taxation without representation.” He was also one of the foremost members of the American colonies to see the necessity of uniting the colonies in America’s cause. Indeed, he wrote in his 1768 patriotic song, “The Liberty Song,” the following lines: “By uniting we stand, by dividing we fall…”
In 1765, Dickinson wrote the following address to his fellow Pennsylvanians, entitled, “An Address to Friends and Countrymen on the Stamp Act,” concerning the alarming abridgments of American liberty and rights the Stamp Act would go through with if it were to prevail and if Americans did not stand up in constitutional and peaceful, yet firm opposition to it.
"The Critical Time has now come, when you are reduced to the Necessity of forming a Resolution, upon a Point of the most alarming Importance than can engage the Attention of Men. Your Conduct at this period must decide the future Fortunes of yourselves, and your posterity-must decide, whether Pennsylvanians, from henceforward, shall be Freemen or Slaves. So vast is the Consequence, so extensive is the Influence of the Measure you shall at present pursue. May God grant that every one of you may consider your Situation with a Seriousness and Sensibility becoming the solemn Occasion; and that you may receive this Address with the same candid and tender Affection for the public Good by which it is dictated."
[The Stamp Act is one which] "strikes the Axe into the Root of the Tree, and lays the hitherto flourishing Branches of American Freedom, with all its precious Fruits, low in the Dust. Men cannot be happy, without Freedom; nor free, without Security of Property; nor secure, unless the sole Power to dispose of it be lodged in themselves. If you comply with the Act, by using Stamped Papers, you fix, you rivet perpetual Chains upon your unhappy Country. You unnecessarily, voluntarily establish the detestable Precedent, which those who have forged your Fetters ardently wish for, to varnish the future Exercise of this new claimed Authority.
Your Compliance with this Act, will save future Ministers the Trouble of reasoning on this Head, and Tameness will free them from any Kind of Moderation, when they shall hereafter meditate any other Taxation upon you. They will have a Precedent furnished by yourselves, and a Demonstration that the Spirit of Americans, after great Clamour and Bluster, is a most submissive servile Spirit.
The Stamp Act, therefore, is to be regarded only as an EXPERIMENT OF YOUR DISPOSITION. If you quietly bend you Necks to that Yoke, you prove yourselves ready to receive any Bondage to which your Lords and Masters shall please to subject you too. Power is a tenacious Nature: What it seizes it will retain.
Rouse yourselves therefore, my dear Countrymen. Think, oh! think of the endless Miseries you must entail upon yourselves, and your Country, by touching the pestilential Cargoes that have been sent to you. Destruction lurks within them-to receive them is Death-is worse than Death-it is SLAVERY!."
-John Dickinson, "An Address to Friends and Countrymen on the Stamp Act," 1765.
As a modern day American and loyal lover of liberty and natural and civil rights, I see an alarming similarity between the English Parliament’s 1765 Stamp Act and the recently passed congressional health care law (labeled “Obamacare” by many), titled “H.R.3590 - Patient Protection and Affordable Care Act.” I do not mean to say that they are one and the same law, or that they are even remotely similar in terms of legislation or topic. Rather, the similarity I see lies in the results of such laws; it lies in the Constitutional realm, as well as the realm of abuse of power and enslavement of the American people. They would both result in the enslavement of the American people to the random will and pleasure of the American federal and state governments as the Stamp Act would have made Americans completely subject and perpetual slave to the all powerful and arbitrary will of the British Parliament. Indeed, if we were to compare British legislation during the American colonial rebellion era with the recent health care act, the best example would most likely be the Tea Act of 1773. Under this piece of legislation, the American colonists were coerced into buying only tea from the British East India Company, prohibiting any foreign imports, and especially smuggling in of foreign tea, thus giving a monopoly to the East India Company. They were also forced, legislatively, to have it unloaded and taxed for it’s import into the American ports, that is, until they stood up once again in opposition to British tyranny. But, this comparison shall come later in this address. For now, let us return to John Dickinson, his address on the Stamp Act, and the recent congressional health care law.
The similarity I see between these two acts is, as aforementioned, the threat to American liberty and rights. Each act threatens our liberty and rights in different ways, due to their different natures and topics. But, both would, intentionally or unintentionally, result in subjecting Americans to a servile state, with the gov. as our masters, instead of the gov. being the servant of the people. Certain specifics within the health care act, namely the health insurance mandate clause, would lead to the abridgment of our rights of conscience, personal property, and the right to give of our individual monetary property in exchange for a privately sold and privately held commodity, according to our own freewill and judgment. And in both cases, they would be a violation of each countries constitution, the Stamp Act being a violation of the English Constitution, and the health care act being a violation of the American Constitution. In the case of the Stamp Act, Americans would have become slaves to the British Parliament, ever subject to their every arbitrary will and random desire, either for the good of the whole or not. And be it for the good of the whole or the good of a few, that act would still be in breach of the English Constitution, in the eyes of Americans. The same goes for the recent health care act. It would place the Americans in the servile position of slaves to government, subject to the arbitrary will, desires, and coercions that the federal Congress or the state legislatures would heave upon the Americans, on pain of penalty for disobedience. In this case, the penalty would be a monetary one, a $700 dollar penalty/fine for failure to purchase health insurance, a “tax” in the misguided, cloudy, power hungry eyes and seemingly empty minds of Congress and the Executive. (Hopefully the same does not have to be said for the Judicial Branch, but we shall discover their intentions very soon I expect.) But a “tax” cannot be a penalty for failure to purchase a commodity, be it privately sold and owned or not. A tax is a tax, and a penalty is a penalty. There are no similarities between the two. Penalties arise from the failure to obey, and/or the breaking of laws or rules, while taxes are the law/rule. Indeed, failure to pay one’s taxes brings penalties. The government cannot issue a legislative demand that all citizens must purchase a privately sold and privately owned commodity, create a resulting penalty for failure to purchase (coercively, mind you) a privately sold and privately owned commodity, and label it a tax. The mere act of them labeling it a “tax” does not make it one. A tax is specifically and legally defined, as is a penalty. They could even call it a “blibbleblob,” but the very act of Congress labeling it so would not make it such, because a tax is legally defined and set in it’s definition, while a blibbleblog is not, nor is it even an intelligible word in the English language. Indeed, Viginia federal judge, Henry Hudson, said the following in his 42-page opinion piece on why the individual health insurance mandate is unconstitutional: “As the Supreme Court pointed out in La Franca, ‘[t]he two words [tax vs. penalty] are not interchangeable…and if an exaction [is] clearly a penalty, it cannot be converted into a tax by the simple expedient of calling it such.’” This can be found on page 35 on his opinion piece.
Continuing, Congress does not set the terms for what is legally a tax and what is not. That term is set, and they have only the power to “lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States,” as dictated by Article 1, Section 8 of the federal Constitution. That clause and section does not give the authority to create new definitions for what a tax is, nor are they delegated the authority, by means of the Constitution, to label some random item a tax. If they were indeed delegated that authority by the Constitution to label and define a “tax”, then it would have been specifically written into that very same clause that they derive their authority to lay taxes. It would have something like this: “Congress shall have the authority to define the word tax, applying it to any monetary collection as they see fit and please, as well as the authority lay and collect those taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States,” But, this clause in Article 8 says no such thing. It merely delegates the authority to Congress to lay and collect those taxes, nothing more, and nothing less. Indeed, since this right of defining a tax lays not with Congress nor any other branch of the federal government, it would mean that, under the 9th and 10th Amendment, it belongs either to the states, or if not delegated to the states, then it belongs solely with the people. The people alone maintain this right, not Congress. Congress has the ability to add tax to certain goods and materials, having a certain percentage added to the regular commercial price of the goods that would then be added to the national treasury. They also have the ability by means of the 16 Amendment, to lay and collect taxes on private incomes as well, which has been used as a way to collect social security as well. And although I vehemently oppose the idea of Congress taking from the income and paychecks of individual Americans, I recognize that it is officially allowed by the Constitution, by means of that 16th Amendment. And as long as it is within the Constitution, I will support it, and if I oppose it, I will call for an amendment that repeals the 16th. But, Congress does not have the power or authority to coerce Americans to buy a specific article, good, or commodity, especially one that’s bought in a private transaction and results in the private holding of the buyer, call for a monetary penalty for failure to purchase said specific commodity, and call either of those a “tax.” If Congress had such authority, or if they were to henceforth be delegated such power, then what would stop them from coercing Americans into buying this item or that item, and prohibiting them from buying this commodity or that commodity, like the British did with our forefathers in Colonial America? The American people would be in perpetual bondage to the arbitrary wills and pleasures of the Congress, who could dictate to the American people what they can and cannot purchase, and what they have to, as a matter of law, purchase or face punishment, thus robbing the American people of their own money without their consent and their stealing their right to choose, by their own freewill and conscience, to trade their personal monetary property in exchange for a private commodity. Never in the history of America under the government and authority of the federal Constitution has the entire American population be mandated by Congressional law to buy a certain commodity, private or not, in exchange for being alive in America.
Congress has attempted to define their authority to do such atrocity and tyranny in terms of the so-called “Commerce Clause, located within the 1 Article, Section 8, which states, “The Congress shall have power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes…” But this clause in no way gives them the authority to mandate that individuals purchase a commodity. Regulating is now the same as mandating a purchase. Regulating does not give Congress the power to coerce Americans into buying something, be it in one individual state or through out all the states and territories within the entire nation. There is no possible argument that could be used to explain why the founders and framers of the American Constitution would even remotely desire to write in such despotism and tyranny into the Constitution, when they had just thrown off that same tyranny coming from the British Parliament, especially in light of the Tea Act of 1773. They didn’t like Great Britain telling them how to spend their money and stealing their money without their consent, so why would they then write that same power into the Constitution of America? I tell you they would not and they did not! The 1773 Tea Act was opposed by Americans because it sought to coerce Americans to buy only British tea from the East India Trading Company, a legally sanction monopoly by Parliament, and tried to force the tea to be imported into the colonies, which the Americans would not allow, leading to the Boston Tea Party in Massachusetts and other tea parties in the other colonies, as well as the colonial prohibition of the tea from being unloaded from the ships it was brought over upon. The Tea Act reduced the price of tea and repealed the British import tax on it, save only for import customs, to be paid by Americans at the time of importation into the colonies, and gave the East India Trading Company the sole legal ability to trade, sell, and export tea in the British Empire, all for the reason of saving the East India Company and thus benefiting the whole of Britain and the British Empire, for the “good of the whole.” But the tab for doing such was laid solely upon the Americans, which to the Americans was a means of raising a revenue in America and a further attempt to bind them under parliamentary rule and taxation without their being represented. The Americans held that the Tea Act of 1773 wasn’t constitutional! How is this analogy of the Tea Act of 1773 different from the new healthcare law, in forcing Americans to buy a privately sold and privately bought commodity, all in the name of the benefit of the whole and the benefit of companies and the insurance market/trade? Even though it may have it’s subtle differences, it is the very same principle! They both seek to coerce Americans into buying something that they may not want to buy, and have a right not to buy!
Congress has attempted to describe the individual health insurance mandate as valid not only under the Commerce Clause, but also under the Necessary and Proper Clause, which states. “Congress shall have power 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.” But what Congress is forgetting that the Necessary and Proper Clause only gives Congress power to make all laws which are for carrying into execution all the powers delegated to them under Article 1, Section 8, and since the individual mandate cannot be enforced by means of the Commerce Clause, it cannot be enforced by means of the Necessary and Proper Clause. Indeed, Justice John Marshal, in two specific cases, Marbury vs. Madison and McCulloch vs. Maryland, already summed this principle up. He wrote,
“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”
-Justice John Marshall, McCulloch vs. Maryland (1819)
"It is also not entirely unworthy of observation that, in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned, and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank.
Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument." Marbury vs. Madison (1803)
James Madison had the following to say concerning the "Necessary and Proper Clause" in relation to the 1798 "Alien and Sedition Act" in his 1800 "Report on the Virginia Resolutions:"
"The part of the Constitution which seems most to be recurred to, in defence of the "sedition-act," is the last clause of the above section, empowering Congress "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 Slates, or in any department or officer thereof."
The plain import of this clause is, that Congress shall have all the incidental or instrumental powers necessary and proper for carrying into execution all the express powers; whether they be vested in the government of the United States, more collectively, or in the several departments or officers thereof. It is not a grant of new powers to Congress, but merely a declaration, for the removal of all uncertainty, that the means of carrying into execution, those otherwise granted, are included in the grant.
Whenever, therefore, a question arises concerning the constitutionality of a particular power, the first question is, whether the power be expressed in the Constitution. If it be, the question is decided. If it be not expressed, the next inquiry must be, whether it is properly an incident to an express power, and necessary to its execution. If it be, it may be exercised by Congress. If it be not. Congress cannot exercise it."
Madison also described the difference between the arbitrary, all-powerful and supreme/sovereign British Parliament and the American Congress in this same work:
"The essential difference between the British government, and the American constitutions, will place this subject in the clearest light.
In the British government, the danger of encroachments on the rights of the people, is understood to be confined to the executive magistrate. The representatives of the people in the legislature, are not only exempt themselves, from distrust, but are considered as sufficient guardians of the rights of their constituents against the danger from the executive. Hence it is a principle, that the parliament is unlimited in its power; or, in their own language, is omnipotent. Hence, too, all the ramparts for protecting the rights of the people, such as their magna charta, their bill of rights, &c., are not reared against the parliament, but against the royal prerogative. They are merely legislative precautions against executive usurpations. Under such a government as this, an exemption of the press from previous restraint by licensers appointed by the king, is all the freedom that can be secured to it.
In the United States, the case is altogether different. The people, not the government, possess the absolute sovereignty. The legislature, no less than the executive, is under limitations of power. Encroachments are regarded as possible from the one, as well as from the other. Hence, in the United States, the great and essential rights of the people are secured against legislative, as well as against executive ambition. They are secured, not by laws paramount to prerogative, but by constitutions paramount to laws. This security of the freedom of the press requires, that it should be exempt, not only from previous restraint by the executive, as in Great Britain, but from legislative restraint also; and this exemption, to be effectual, must be an exemption not only from the previous inspection of licensers, but from the subsequent penalty of laws."
Many supporters of the individual health insurance mandate have used the mandate of proof of car insurance as an example of such, but they forget that having and owning a car in America is not a right, nor a mandate, but a privilege and a choice, and that one is not required by law to purchase and show proof of purchase of a car. On the contrary, if one wants to not own a car, he/she is free to make such a decision. The same goes for individuals who do want to own a car. They are free to make that decision and purchase whatever kind of car they like. But, due to the dangerous nature of driving on the highways in America, with the chances of getting in a car accident quite high, the owner of a car must purchase and show proof of purchase of car insurance to be able to drive on the public streets, roads, and highways of America. And even then, if one wanted to buy a car and not have to purchase car insurance, they could do so, but they would not be able to drive their car on public roads, but only on private roads and in their own private driveway. It would be quite silly to do such, but still quite possible, if one did not want to purchase car insurance. However, this example is not the same as mandating the entire population of America have proof of purchase of private health insurance in exchange for living. One does not have the volition of choice in living or not as one does in deciding to purchase a car or not. Life is a necessity, a natural right, a God given right, as stated in Mr. Jefferson’s Declaration of Independence and in the 5th Amendment of our Constitution, while a car is neither. In addition, the mandate to purchase car insurance upon driving a car on the public highways and roads of American is not a federal mandate; rather, it is mandated by the individual states, and even then, according to the very words of President Obama, not all of them, but only most of them.
The individual health insurance mandate, however, is a federal law/mandate, and therefore is further separated from the analogy of the state-by-state mandatory car insurance. Therefore, mandatory car insurance within individual states is in no way similar, nor does it set a precedent for or logically allow a federal mandate for individual purchase of health insurance. This often used example as justification for the individual healthcare insurance mandate is faulty and void.
We, fellow citizens, must rise up in opposition to this unconstitutional law and step toward enslavement of the American people. Now this is not a call to arms, to violence or tumult and riots. Rather this is a call to lawful, constitutional, peaceful yet firm vocal and written opposition. Again, peaceful, yet firm in our stance, as John Dickinson once called his fellow countrymen to action during his fight against British tyranny and oppression, in protection of his and his fellow American’s rights and liberty. We must continue to voice our opposition to this coercive part of the health care act! We must not back down until it is retracted and repealed! When the lawsuits from the 20 brave states that are suing Congress over the health care law come to the courts, we must place our hope and faith in the courts and justices that they will adhere to their legal and official duty, having sworn an oath to uphold the Constitution. Let us hope they will not bend the Constitution to meet the demands of a statutory piece of legislation, but rather, that they will bend and alter the statutory law so as to meet the demands and dictates of the Constitution. Indeed, as Justice John Marshal said, in his decision on Marbury vs. Madison, “…a law repugnant to the Constitution is void; and that courts, as well as other departments, are bound by that instrument.”