"But a Constitution of Government once changed from Freedom, can never be restored. Liberty, once lost, is lost forever." - John Adams

Tuesday, April 6, 2010

American Thinker: The Perfect Constitutional Storm

American Thinker: The Perfect Constitutional Storm
Larry Anderson does a great job of explaining why the "Commerce Clause" argument being made by several states against ObamaCare will fail. He also points out several arguments that can be made by "the people" that will certainly see the law repealed. My favorite is the Griswold vs Connecticut argument:

What is interesting about the possibility of a 9th Amendment challenge to ObamaCare is that previous "progressive" decisions issued by the Supreme Court could offer some of the best ammunition for the case that the legislation is unconstitutional.
Of particular importance is Griswold v. Connecticut. This poorly decided Supreme Court case (written in 1965) has become the heart and soul of the judicial "reasoning" behind Roe v. Wade (legalized abortion), Planned Parenthood v. Casey (husband need not be notified if wife has an abortion), and Lawrence v. Texas (Texas sodomy law ruled unconstitutional).
It would be the irony of ironies if Griswold v. Connecticut were used by the Supreme Court to overturn Obamacare -- and it just might be.
Justice Douglas, who wrote Griswold, found that "... specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy."
We could debate all day about what this gibberish means. But the Supreme Court has found it to be of the utmost importance. Griswold held that the state could not prevent a married couple from purchasing contraceptives. One would assume that the opposite would also be true -- that the state cannot force a married couple to buy and use contraceptives. Substitute "health insurance" for "condoms" and Griswold gives us an argument against the constitutionality of ObamaCare.
Douglas noted in his Griswold decision, "In NAACP v. Alabama, 357 U.S. 449, 462, we protected the 'freedom to associate and privacy in one's associations.'" One would think that it follows that the freedom to associate or not with an insurance company would be up to the individual citizen.
Douglas also declared, "Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a 'governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.'"
Like whether or not to buy health insurance? Free to choose a level of coverage? And to be able to buy such insurance from whatever source a person desires -- free from the interference of the government?

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