Sen. Orrin Hatch and his distinguished co-authors J. Kenneth Blackwell and Kenneth A. Klukowski take an important step in renewed constitutional evaluation of congressional legislation, particularly bills concerning health care ("Why the Health-Care Bills Are Unconstitutional," op-ed, Jan. 2).
The authors and Congress need to view the Article I, Section 8, ". . . provide for the . . . general Welfare" clause in the context of the inclusion of the comparable phrase "promote the general Welfare" in the Preamble to the Constitution. That phrase's inclusion in the Preamble was one of several basic reasons for the establishment of this form of government and subordinates the congressional powers enumerated in Article I to other constitutional provisions. Of particular note in this regard are (1) the lack of any enumeration in Section 8 of health care among many other proper areas for Congressional intervention, and (2) the combined effect of the Fifth and 14th Amendments making legislative imposition of reward or penalty on some individuals and not others unconstitutional by depriving those other individuals of "equal protection of the laws."
Sen. Hatch and his co-authors then suggest that the states, not the federal government, "may have the authority to require individuals to purchase health insurance." In fact, neither the states nor the federal government has that authority under the Fifth and 14th Amendments. The 14th Amendment specifically makes such a requirement by a state unconstitutional if it mandates that persons, who do not wish to do so, purchase insurance, once again denying "equal protection" to those persons.
Finally, Sen. Hatch and his co-authors imply that state laws requiring drivers to have car insurance are comparable to requiring the purchase of health insurance. Car insurance is required only for those who drive on government constructed and managed roads and constitutes an entirely different mandate well within the states' 10th Amendment powers. The comparison is irrelevant to issues of mandated health insurance for all, by either the federal government or the states.
Harrison H. Schmitt
Albuquerque, N.M.
Mr. Schmitt was a U.S. senator (R., N.M.) from 1976-1982.
I have read several comprehensive articles in the Journal challenging the constitutionality of the Democrats' current health-care bill. The articles provide a thorough explanation of the issues but do not indicate any plans to challenge the bill(s). I have contacted my congressional representative and senators and have urged them to act in this matter. I do hope that the bills' questionable constitutionality is vigorously pursued through our justice system.
L. Lam
St. Louis
The fact is that all federal health-care programs, including the Medicare prescription bill of 2003 that Mr. Hatch voted for, are unconstitutional. As the authors state, correctly: "Congress must be able to point to at least one of its powers listed in the Constitution as the basis of any legislation it passes." The Constitution lists 18 specific legislative powers of Congress (Article I, Section 8), and not one of them authorizes federal legislation of health care.
Jack Davis
Carlsbad, Calif.
At last, a Republican senator has gone to print and finally identified both the central issue as well as the real ideological battleground for the 2010 election.
The American people need to decide if, in fact, the Constitution has any meaning at all. In regard to Article 1, Section 8, either the general welfare clause can mean anything and everything, or the powers of the federal government are enumerated and limited.
The health-care debate is also an excellent opportunity to see if the Democratic members of Congress believe that the Ninth and 10th Amendments (enumerated and delegated powers) have any meaning whatsoever. The shape and content of the health-care legislation thus far can only suggest that they do not believe so.
If the Republicans can manage to hold with the Constitution and not be beguiled by "bipartisanship" (meaning that they take part in a variety of commissions and further capitulate to liberal demands), they may well galvanize the American voter who—if polls are any indication—has tired of the relentless casuistry of the current administration and its congressional handmaidens.
Robert M. Hunt
Petaluma, Calif.
Keith Burgess-Jackson, J.D., Ph.D. 