It’s become a common question at health care forums around the country. A speaker wants to know where in the Constitution does Congress have the power to mandate health care.
A couple of examples from Wednesday:
“I see nowhere in the Constitution where health care is a right,” a man told U.S. Sen. Chuck Grassley, an Iowa Republican, according to a report in Politico. “I want to hear it from (President) Obama. I want to hear it from (House Speaker Nancy) Pelosi, about how this is about ‘We the People.’ “ And in Maryland, a local television station reported that a constituent ordered Democratic Sen. Ben Cardin “to cease and desist under the Eighth and Ninth Amendments and Article 1, Section 8, of the United States Constitution, to addressing health care legislation.”
It is true that the Constitution does not mention health care. There is nothing about Congress providing for blood letting, leeches or poultices, but this silence is meaningless, since the Constitution is silent about countless specific matters.
Article I, Section 8, however, gives Congress the power to provide for the “general welfare,” repeating part of the well-known preamble (“We the People “). Congress also has the power “to regulate Commerce” and health care and the insurance of health care are commercial activities. So health care might not be a right, but it is a benefit Congress can bestow upon the people as a part of its constitutional powers.
How broad those congressional powers are has always been and will always remain a matter of sharp debate. Some framers of the Constitution (Madison, for example) saw congressional powers limited to those matters enumerated in Section 8 while others (Hamilton, for example) saw expanded powers. In 1937, the Supreme Court ruled that Social Security was constitutional under the welfare clause and declared that “(t)he concept of the ‘general welfare’ is not static Needs that were narrow or parochial a century ago may be interwoven in our day with the wellbeing of the Nation. What is critical or urgent changes with the times.” Thus, if Social Security is constitutional, then why would a government-run health plan not be?
The “cease and desist” speaker in Maryland implied that the Eighth and Ninth Amendments would render any congressionally mandated health care plan unconstitutional. The Eighth Amendment, which deals with excessive bails and fines and cruel and unusual punishment, is irrelevant to health care. The Ninth Amendment says that just because some rights are listed in the Constitution and others aren’t doesn’t mean that the ones not listed don’t exist. To quote the amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” So maybe health care is a right after all, if we decide it is.