"The Government can't do that, its against the Constitution"

The argument is presented by the right time and time again, "you can't do that, its against the Constitution".

Nonsense. There are, by my count, only 27 activities that are prohibited by our Constitution. They are:

1. Article I, Section 2.

No person shall be a Representative who shall not have attained to the age of twenty five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen.

2. Article I, Section 2.

The number of Representatives shall not exceed one for every thirty thousand ...

3. Article I, Section 3.

No person shall be a Senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States and who shall not, when elected, be an inhabitant of that state for which he shall be chosen.

4. Article I, Section 3.

The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no person shall be convicted without the concurrence of two thirds of the members present.

5. Article I, Section 3.

Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: ...

6. Article I, Section 5.

Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting.

7. Article I, Section 6.

No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created

8. Article I, Section 7.

No bill of attainder or ex post facto Law shall be passed.

9. Article I, Section 9.

No tax or duty shall be laid on articles exported from any state.

10. Article I, Section 9.

No preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another: nor shall vessels bound to, or from, one state, be obliged to enter, clear or pay duties in another.

11. Article I, Section 9.

No money shall be drawn from the treasury, but in consequence of appropriations made by law; and a regular statement and account of receipts and expenditures of all public money shall be published from time to time.

12. Article I, Section 9.

No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.

13. Article I Section 10.

No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.

14. Article I Section 10.

No state shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing it's inspection laws: and the net produce of all duties and imposts, laid by any state on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the Congress.

15. Article I Section 10.

No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.

16. Article II, Section 1.

"no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector."

17. Article II, Seciton 1.

No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.

18. Article II, Section 1.

The President shall, at stated times, receive for his services, a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected, and he shall not receive within that period any other emolument from the United States, or any of them.

19. Article III, Section 3.

"No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court."

20-27. Bill of rights:

Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.


Amendment II

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.


Amendment III

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.


Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.


Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VII

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

it's explicitly enabled to do?

See this part here:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

That "or to the people" tosses it right back into Article I where the people's wishes are put into practice by the House of Representatives.

If it does we are in BIG TROUBLE.

Only the federal govt is protected from warrantless searches? Only the federal govt can petition the govt for grievances?

The people means just that. The people. You me, the bum on the street, the people of the United States.

That "the people" need to make it a constitutional amendment so that it is within the constitution and thus constitutional.

Of course I would argue the "general welfare" clause of the preamble makes healthcare not only allowable but a constitutational imperative. No civilization--if indeed that is what we are--allows people to die in the streets from neglect. Civil rights weren't in the constitution either and the powers that were refused to allow them in regardless of what the people wanted or needed.

Sometimes the right thing requires that you not pay heed to the howling (ignoring as opposed to actively silencing) mob and move past them to do the good work.

It does provide for the general welfare if everyone has healthcare.

The lack of affordable access to care doesn't only hurt the individual it hurts the entire country.
It leads to more rapid spread of disease, loss of productivity, lower life sxpectancy.

The entire nation (even those insured) suffer from a lack of universal access.

Universal Coverage = "general welfare"

Why write it at all if it really means "the powers not granted to the federal government still belong to the federal government?

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

10th Amendment – Powers of States and people.
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

But there's also the 9th Amendment – Protection of rights not specifically enumerated in the Bill of Rights.
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."


I think the Founders were pointing out that they couldn't get absurdly specific, and enumerate everything. They weren't being literal. They were setting down basic principles to be followed.

That is how the people retain the right to privacy despite it not being enumarated.
Women retain the right to abortion despite it not being enumerated.

The founders were very smart people. The listed what they considered the most important however they knew it would be IMPOSSIBLE to list every single right and every single future right. The BofR would need to be at least a couple thousand pages long.

The provided specific protection in the BofR and then as added security used the 9th & 10th to constrain generally the power of the federal govt.

Including the power to regulate commerce.

And the 10th Amendment says "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

and people are saying that good cases can be made for and against this power.

It WILL go to the Supreme Court. Count on it.

It's been a favorite RW talking point to say "That's unconstitutional!" to everything they disagree with, while simultaneously rolling over the Constitution & squishing it between their toes when it suits them. They only respect our founding document when it works out to their favor.

There may very well be unresolved questions regarding the limits of Congressional power. Commerce & the scope of individual mandates aren't among them. Unless you're Amish, you have an obligation to follow such mandates passed by Congress & singed into law.

Actually as much as I hate mandates I showed a legal path that provides power necessary for mandates in another thread.

The commerce clause and the ruling in Wickard v. Filburn pretty much guarantee any mandate will survive a Constitutional challenge.
http://en.wikipedia.org/wiki/Wickard_v._Filburn

The wingnuts are also wrong about single payer but for different reasons. I think the "provide for general welfare" clause provides sufficient power for the govt to enact universal single payer coverage (even for those living here illegally). The general welfare is protected by universal coverage.

None of this changes the fact that it is utterly absurd to think that either
a) there are only 27 specific restrictions on the federal govt and they can do anything else
b) that "the people" means the Congress.

Not only is it absurd it is dangerous.

"...and served in the Justice Department under presidents Ronald Reagan and George H.W. Bush."

Like I said - RW talking points

of forcing someone to buy a product from private industry.

This is NOT just a RW talking point.

Show me a liberal or progressive national editorial or columnist who opposes health care reform because they think the 10th Amendment trumps Art. 1 Sec. 8.

And, if you've got a car aren't you forced to buy car insurance FROM A PRIVATE COMPANY?

Also, I never said the liberals would oppose individual mandates "because they think the 10th Amendment trumps Art. 1 Sec. 8."

I oppose it because it effectively transfers the government's taxing power to private hands. I oppose it because it is another step toward Fascism e.g. Corporate Rule.

The thing is, people who've been paying attention would know that the individual mandate has always been part of the proposed health care reforms - and not start raising "concerns" about it at this late date.

This would be a valid criticism if - IF - the only proposed bill had the mandate w/o a public option; e.g. the Baucus bill. But that's only one of five bills proposed - and the only one WITH OUT the public option. Because of this the general consensus is that the Baucus bill is going to be DOA.

The Constitution wasn't designed as a "can't do list" it was designed primarily as a limited "can do list". If the feds want more power they are required to ASK FOR IT. They ASK the people for more power via the amendment process.

Now some rights are considered so fundamental that the founders felt it necessary to list them, to "enumerate" them. That list was NEVER intended to be exhaustive.

The major constraint on the federal govt is the 10th amendment. Remember the BofR was ratified AFTER the Constitution so it is obvious the people felt it necessary for the power of the feds to be more constrained:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Just looking at the "can't do" list is not enough. By that logic of Constitution only having 27 limits the federal govt could kill all dogs in the country. The federal govt could also select the only authorized text book (favorable to federal govt) for teaching US history in all schools.

The PEOPLE are the PEOPLE.

If the PEOPLE in the 10th means the federal govt then how about....

A well regulated Militia, being necessary to the security of a free State, the right of the People to keep and bear Arms, shall not be infringed.

So prevent federal oppression only "the people" = federal agents can have firearms. Yup that makes a lot of sense.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Only "the people" = Congress have the right to petition the govt? So Congress can't prohibit Congress from petitioning Congress but they can prohibit everyone else from doing so?

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Only agents of the govt are protected from warrant less searches? The masses have no right here?

No constitutional historian takes seriously the concept that "the people" mean Congress. It isn't only wrong and completely fails the most simple scrutiny but it is utterly dangerous. That definition gives the federal govt all the power and the BofR is just a scam to placate the masses while providing no meaningful protection.

The Civil War helped to determine that the Federal government can take away some powers delegated to the states, for the good of the country.

Slavery was a state issue, there is now a Constitutional amendment against slavery

The founders had no issue with federal govt becoming more powerful if the PEOPLE felt the need.
They provided a mechanism to expand the power of the federal govt.

It has been done 17 times since the BofR.

...there is no right to secede.

The CSA seceded because the election of Lincoln spelled the political ascension of the abolitionist movement. The CSA was effectiely attempting to pro-actively ignore laws it knew were about to pass and did not want to obey. Lincoln didn't fight to abolish slavery he fought to keep the rebels from exempting themselves from the law.

Of course since CSA rebelled over abolition their objection did not disqualify the movement so it came around as a matter of course regardless how much blood they spilled.

Congress had no authority to pass any law regulating slavery. The Supreme Court Decision (Scott V. Sanford, 1857) made it perfectly clear that the Federal Government had no legal authority to regulate slavery. The Lincoln administration had not even taken over the reins of government when South Carolina succeded.

sometimes they're correct, sometimes they're not. It depends entirely on the context.

Lets the feds do pretty much any damn thing they want to.

If I can be thrown in prison because a weed that happens to be growing on my property *might* effect interstate commerce then there is very little that will not effect interstate commerce.

however it is not nearly as bad as the OP claim that feds retain all powers except the 27 listed because "the people" means the federal govt.

That is a road to tyranny.

...look how many powers President Obama's predecessor assumed for himself all the while singing merrily, "try to stop me!"

I don't think I want to live through something like that ever again.

Keep in mind that it took a Constitutional Amendment to make alcohol illegal and even then individual possession and consumption of alcohol was not illegal, only sales, manufacture and importation.

For all of the currently illegal drugs no such Amendment was needed and you can get a long prison term for mere possession and the way the laws are written if alcohol and tobacco were included you could be charged with intent to distribute for having a six pack of beer or a pack of cigarettes.

All thanks to the way the SCOTUS has interpreted Commerce Clause.

Likely many of them never went beyond high school but they show up at these rallies spouting all sorts of opinion about what the constitution says. I guarantee you most of them haven't even read it. They walk around with some vague notion that someone once told them and take it as gospel. I had an RWer tell me once that we should go back to the original that does not allow the Congressional representatives to be paid. It's right there in Article I, section 6. I pulled it up online and read it to him. He was shocked. In his 60's he spent his whole life thinking the original representatives were not paid.

The Federal government is a government of limited power. In order to exercise power, the Federal government must establish jurisdiction via one of the powers enumerated in the Constitution (e.g. the power to tax and spend, the power to regulate commerce, etc.)

Enumerated powers are reserved to the people or states.

The gov'ts powers are restricted to those explicitly in the Constitution.

The Constitution clearly says that the powers NOT innumerated to Congress are reserved for the states and the people.

IMO we really need a new constitution. A lot of the document is too vague for our modern, complicated world, giving an opportunity for politicians to get what they want by appointing judges with agendas (like Scalia). Much of our economic regulations are justified by stretching the Commerce Clause to it's limit, and that same stretching also allows the BS "War on Drugs".