Had Enough?

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If there were
any doubt that our constitutional protection has been lost, that
doubt should be removed by the congressional vote subjecting the
personal health care decisions of every American to central governmental

By an extremely
narrow majority, the House of Representatives has crammed a profoundly
unpopular and unconstitutional measure down the throats of the American
public: And not only unpopular and unconstitutional, but expensive
enough to virtually ensure our nation’s eventual bankruptcy.

Unless it is
overturned, nationalized health care will complete the process of
changing the Founders’ system of a government dependent on
the people to one where the people are dependent on the government.
Citizens will be thoroughly re-molded into subjects.

The unseemly
legislative conduct (the Founders would have called it “corruption”)
leading up to the vote have communicated even to those previously
not paying attention that federal politicians are now absolutely,
utterly out of control. The majority in Congress has rendered it
perfectly clear that there is no constitutional or legal restriction
they will not violate.

As congressional
rumblings about the recent Citizens United decision have suggested,
protections for free speech may be next.

There is no
“good” response to these outrages – that is, “good”
in the sense of easy and foolproof: After all, the very people who
perpetrated them also control America’s nuclear arsenal. There
are only responses that, while difficult, offer real hope of success.
Here are a few:

  • Widespread
    court challenges, on every colorable constitutional, legal, and
    technical ground we can think of. State governments can take
    a leading role in this, by virtue of the fact that state governments
    are more likely than individuals to have standing in federal court.
    State governments and officials also have much to lose if the
    feds are allowed to complete their health care takeover.

  • Health
    care provider non-compliance: To the extent they can, physicians
    and other providers should opt out of the system. Their choices
    include partial or complete refusal to participate in Medicare,
    Medicaid, and other government programs; refusal to take any but
    direct-payment patients; reduced work hours; and even career change
    and early retirement. Students considering a medical career should
    now reconsider. Given the ominous nature of the federal health
    care coup d’tat, my guess is that a lot of this will happen
  • State
    constitutional amendments. One excellent idea is the amendment
    in many states
    guaranteeing that the state will never participate
    in any system that denies patients and physicians the right to
    their own health-care decisions.
  • Civil
    disobedience. This should include state non-compliance with
    federal health-care mandates and peaceful resistance by providers
    and citizens at every level. The model here should be the Civil
    Rights movement of the 1960s.
  • Redoubling
    efforts for the 2010 elections. The people responsible for
    this bill should be cleaned out of Congress – all of them.
    In addition, we need to gear up for 2012 and ensure that state
    lawmakers elected in 2010 fully understand their constitutional
  • Amend-to-Save.
    A clean sweep of Congress is not enough. There is now no escaping
    it – we need amend our Constitution to save it, or we will
    not have any Constitution left.

There is nothing
new in this last proposal. Our fathers, grandfathers, and their
predecessors all adopted constitutional amendments designed less
to change the system than to preserve it. Again and again, the American
people adopted formal amendments to rein in the politicians and
restore or reinforce Founding principles.

Thus, the Ninth
Amendment made clear that federal powers were not to be interpreted
too expansively. The Tenth Amendment clarified that the central
government had no authority other than that granted by the Constitution.
The Eleventh reversed a Supreme Court opinion that conflicted with
the dominant understanding of the ratifiers. The Twenty-First Amendment
restored control over alcoholic beverages to the states, where the
Founders had left it. The Twenty-Second Amendment restored the two-term
presidential tradition set by Washington, Jefferson, and Madison.
The Twenty-Seventh, although not finally adopted until 1992, had
been proposed by James Madison and sent to the states by the First
Congress. The Thirteenth, Fourteenth, and Fifteenth (the post-Civil
War amendments) were more radical, but also principally fulfilled
the ideals of the Founding.

Now we need
a Twenty-Eight, Twenty-Ninth, and Thirtieth Amendment – not
so much to change the Founders’ Constitution as to restore
it. How? Congress will not reform itself. Fortunately, the Founders
recognized that when Congress veered completely out of control,
there had to be a way to amend without its consent. Hence, they
wrote into the Constitution a procedure whereby two-thirds of the
states could propose amendments, which would then be drafted by
a convention, and approved only if three-quarters of the states
ratified them.

We now have
no choice: We are going to have to use that method. That’s
why state legislative races are so important this year.

This is
reprinted from the Tenth
Amendment Center

24, 2010

Natelson is Professor of Constitutional Law at the University of
Montana and a nationally-known expert on the American Founding.
After a quarter of a century in academia, he is leaving this year
to fight full-time for freedom at the Independence Institute in
Golden, Colorado. His constitutional publications can be found at
The views expressed here are his own, not to be attributed to any
organization or institution.

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