Do Constitutionalists Intentionally "Misconstrue" the Constitution?

By:  Joe Wolverton, II, J.D.
12/04/2013
       
Do Constitutionalists Intentionally "Misconstrue" the Constitution?

Robert Parry insists that constitutionalists intentionally misconstrue the Constitution for their own partisan purposes.

In an op-ed published by TruthOut.org on December 1, Robert Parry claims that the Right has “misconstrued” the Constitution. 

Writing in defense of ObamaCare, Parry argues that constitutional “strict constructionists” have a “bizarre” understanding of the Constitution.

Parry believes that the Supreme Court’s decision upholding the individual mandate of ObamaCare was constitutionally sound and a legally defensible protection of the exercise of the so-called General Welfare and Commerce Clauses of the Constitution. 

In fact, Parry writes that the dissenting opinion in the ObamaCare case ignored “the clear intent of the Framers to give the federal government’s elected representatives broad powers to do whatever they judged necessary to “provide for … the general Welfare of the United States” and — through the Commerce Clause — the power to regulate interstate commerce, which clearly applied to the health insurance industry.”

Continuing along that path, Parry claims:

The Constitution grants sweeping powers to the federal government to “provide for … the general Welfare” and to enact whatever legislation is deemed “necessary and proper” to achieve that and other goals. The language about the “general Welfare” appears both in the Preamble and in Article I, Section 8, the so-called “enumerated powers.” It is an open-ended concept giving wide discretion to the country’s elected representatives.

To believe otherwise, Parry suggests, is dishonest, “crimped, and revisionist.”

Despite Parry’s recasting of constitutional history, it is irrational to believe that the Constitution would purport to give Congress the power to raise revenue for unconstitutional purposes. That is to say, logically, taxes may only be collected and those funds may only lawfully be spent on those items that fall within the limited scope of authority afforded to the central government. The Constitution defines those limits as the general welfare and defense.

No one would sensibly argue that the individual mandate is an act in defense of the United States, but there are those who will say that by providing access to medical care insurance to those who would otherwise be unable to afford it, ObamaCare promotes the general welfare and is thus constitutional.

James Madison disagreed. As he wrote in 1792, “If Congress can do whatever in their discretion can be done by money, and will promote the general welfare, the Government is no longer a limited one possessing enumerated powers, but an indefinite one subject to particular exceptions.”

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