All posts tagged constitution.

sds:

It seem there are three questions to answer, two are philosophical and one pragmatic.

1. Does the government have a moral obligation to provide healthcare and/or insurance to all Americans (or ensure that all have care and coverage)?

2. Does the Constitution allow for the federal government to provide healchare and/or insurance to all Americans (or ensure that all have care and coverage)?

3. Assuming #1 and #2 and true, would it even work?

I do not have solid answers to any of these questions, but I lean toward “no” for all three.

I most definitely believe it is the government’s responsibility to keep their citizens healthy. That includes making sure that the health care can be afforded. How often would you hear about bankruptcy from medical expenses 50 or more years ago. Our system is blatantly broken.

I’m not convinced that a single payer system is the best way for the government to ensure the health of its people but the government has to be involved. It’s clear to me though that regulation is required.

I will agree that some of the current problems with health care is due to government intervention. But given the nature of health issues a free-market will not create a reasonable solution. There is no economic incentive for any insurance company to provide insurance to someone with a chronic condition. People don’t plan for that huge surgery they don’t see coming and the insurance companies will screw them on coverage.

As to whether this is constitutional or not it is. There’s argument as to whether the Constitution would mandate it, and most would probably agree that there is no mandate in the wording of the constitution. That’s the beauty of the Constitution though, it’s a living document. What’s true in it today isn’t tomorrow.

Question #3 is the one I’m in most agreement with you on. The Congress has given no indication of competency and I’m not one to expect it right now. Current incompetency is no reason to say that it can’t work with quality writing.

squashed:

(sds asked this question. Here’s an answer.)

Marriage is traditionally in the realm of state’s rights—so we should look at the 14th ammendment.

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

These two sentences are perhaps the most important and most debated in the Constitution. They do not say that the states must have laws governing things like marriage—but if the states have those laws, they must give everybody equal protection. Some states once had miscegenation laws. As you might imagine, those were unconstitutional under this ammendment. I’m sure some people argued that they should be constitutional—after all, everybody has the same right to marry somebody of the same race. The Supreme Court saw that argument for the garbage it is.  (The case, appropriately, is Loving v. Virginia. Mr. and Mrs. Loving sued. Throughout the opinion, they are referred to as “the Loving couple.”)

So the U.S. Constitution doesn’t explicitly state that everybody has a right to marriage. And soon the California Constitution will state that at least one type of marriage is not permissible. But the Constitution does state that if there are going to be laws offering various protections (like spousal priviledges), they have to offer everybody the same type of protection. Some might argue that everybody is equally free to marry somebody of the opposite sex. I would find that one hard to make with a straight face. It’s pretty clear that many people have no interest in marrying somebody of the opposite sex.

The current mandate is that those belonging to a suspect class are afforded these the “equal protection” from the 14th amendment.

To be considered a suspect classification in the U.S. a group must meet all of the following criteria:

• The groups’ characteristics are immutable. (Race, national origin)
• The group shares a history of discrimination.
• The group is politically impotent.
• The group is a discrete and insular minority. (see U.S. v. Carolene Products)

The Supreme Court has recognized that race, national origin, religion, and alienage are suspect classes, and therefore any laws discriminating against these classes are analyzed under strict scrutiny. Quasi-suspect class, with its intermediate scrutiny, it typically reserved for government sponsored discrimination on the basis of sex or legitimacy. Rational basis scrutiny covers all other discriminatory statues, i.e. disability, political preference or political affiliation or sexual orientation.

As homosexuality is only viewed with rational basis scrutiny, rather then strict scrutiny, things like marriage are not currently viewed as an equal protection violation.

To reverse Prop 8 a supreme court case must define sexual orientation as a suspect class.

Permalink

In relation to the supreme court case coming up with regard to the handgun ban in the District of Columbia many people have brought up the slippery slope that could happen to individual rights if guns are made illegal. I know most of you have never read the constitution or the bill of rights so here’s the first and second amendment:

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.

N.B. the first amendment does not protect you from private infringement or even state infringement, the 14th amendment protects you from the states and nothing protects you from private infringement.

The first amendment is fairly straightforward and unambiguous as to the rights it protects. Compare this to the second amendment, as passed by the House and Senate:

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.

This is fairly ambiguous statement. First of all is it one statement or two? what shall not be infringed? The modern militia is the national guard, does this protect their right to bear arms or all person’s rights. Or assuming the national guard is not the modern militia do you have to belong to a militia to qualify for this protection? what constitutes a militia?

This question becomes even more diluted when you look at state vs federal governments. Unlike the first amendment the second does not explicitly specify whom shall not infringe said rights. Then, if the 2nd amendment only applies to the federal government does the 14th amendment apply to the second as it does to the first? If that wasn’t confusing enough several different states ratified different versions of the 2nd amendment from the one passed by the congress.

In large part the states have taken charge with regard to gun regulation legislation. It’s worth noting that it is legal to own a gun in the district but it is illegal to own a handgun. This was largely prompted by the fact that for a while DC had the highest murder rate in the nation. Since enacting this ban the murder rate has dropped dramatically and DC is no longer a contender for the murder capital of the nation.

Constitution of the United States, 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.

That’s all it says.

So next time some business or non-governmental group of people tells you there are things you aren’t allowed to say on their premises, physical or virtual, do not claim that your constitutional rights are being violated, because they’re not.

Thanks.

The interesting thing is that the bill of rights is that it doesn’t even protect you from state governments impeding your rights. It’s actually the 14th amendment which protects you from the states.