Speaking about the criminal justice system on his "700 Club" television program, Robertson remarked that it was a "shocking statistic" that the United States has "the highest rate of incarceration of any nation on the face of the Earth." Then he said something few "law and order" conservatives – and especially Christian conservatives – would dare to say: "More and more prisons, more and more crime. It’s just shocking, especially this business about drug offenses. It’s time we stop locking up people for possession of marijuana. We just can’t do it anymore…You don’t lock ‘em up for booze unless they kill somebody on the highway."

This is not the first time that Robertson has come out for the legalization of marijuana. Back in 2010, he raised the same points:

We’re locking up people that have taken a couple puffs of marijuana and next thing you know they’ve got 10 years with mandatory sentences.

I’m not exactly for the use of drugs, don’t get me wrong, but I just believe that criminalizing marijuana, criminalizing the possession of a few ounces of pot, that kinda thing it’s just, it’s costing us a fortune and it’s ruining young people. Young people go into prisons, they go in as youths and come out as hardened criminals. That’s not a good thing.

Not everyone at the Christian Broadcasting Network, however, shared Robertson’s views. A spokesman claimed that Robertson "did not call for the decriminalization of marijuana." He was merely "advocating that our government revisit the severity of the existing laws because mandatory drug sentences do harm to many young people who go to prison and come out as hardened criminals."

Pat Robertson is exactly correct on the subject of marijuana possession. This doesn’t necessarily mean that he favors the legalization of other drugs or even the fully legalized cultivation, sale, and distribution of marijuana, but it does raise the important question of whether Christians should support the war on drugs.

Although I am a theological and cultural conservative, and neither advocate nor condone the use of mind-altering, behavior-altering, or mood-altering substances, I believe that Christians shouldn’t support the government’s war on drugs any more than they should support the government’s wars on poverty, obesity, dietary fat, cholesterol, cancer, and tobacco.

Not only do I not use what are classified by the government as illegal drugs, wouldn’t use them if they were legal, and would prefer that no one else do so whether they are legal or illegal, I would rather see people use drugs than the government wage war on them for doing so.

As a believer in moral absolutes, I consider the use of any drug for any reason other than because of a medical necessity to be dangerous, destructive, and immoral, but I also consider the government’s war on drugs to be dangerous, destructive, and immoral.

As an adherent to the ethical principles of the New Testament, I regard drug abuse to be a vice, a sin, and an evil that Christians should avoid even as they avoid supporting the government’s war on drugs.

As a Christian, I oppose root and branch every facet of the government’s war on drugs just as much as I oppose the use of drugs themselves.

Yes, I know I am being redundant. But that’s because some Christians still just don’t get it. So let me make myself perfectly clear: drugs are bad. Smoking crack is evil. Getting high on marijuana cigarettes or brownies is a vice. Snorting cocaine is destructive. Shooting up with heroin is sinful. Swallowing ecstasy is immoral. Injecting yourself with crystal meth is dangerous. But none of these things means that there should be a law against doing any of them. And it is a myth that those who favor marijuana legalization or drug decriminalization just want to get high without being hassled by the police. Pat Robertson certainly doesn’t. And I certainly don’t either.

There are many reasons why Christians should not support the war on drugs.

Constitutionally, the federal government has no authority whatsoever to regulate drugs, let alone criminalize their manufacture, sale, and use. Just like the government has no authority to control what Americans choose to eat, drink, smoke, inject, absorb, snort, sniff, inhale, swallow, or otherwise ingest into their bodies.

Philosophically, it is not the purpose of government to be a nanny state that monitors the behavior of its citizens. It is simply not the purpose of government to protect people from bad habits or harmful substances or punish people for risky behavior or vice. Drug prohibition is impossible to reconcile with a limited government.

Pragmatically, the war on drugs should be ended because it is a complete and total failure. As I have pointed out many times, the war on drugs has failed to prevent drug abuse, reduce drug trafficking, or reduce the demand for drugs. It has ruined more lives than drugs themselves.

Practically, the war on drugs should be ended because all it does is clog the judicial system, unnecessarily swell prison populations, foster violence, corrupt law enforcement, hinder legitimate pain treatment, and unreasonably inconvenience retail shopping.

Medically, the war on drugs is misguided. In a study by the Independent Scientific Committee on Drugs published in the prestigious medical journal The Lancet, it was alcohol that ranked as the "most harmful drug," beating out heroin, crack cocaine, and ecstasy. And then there is the fact that tens of thousands of people die every year from prescription drugs and reactions to over-the-counter drugs like aspirin.

Financially, the costs of drug prohibition far outweigh the benefits. According to a 2010 study by the Cato Institute, spending on the drug war tops $41 billion a year. What have we gotten for this except the militarization of the police, the erosion of civil liberties, and the destruction of financial privacy?

Theologically, and most importantly, there is no warrant in the New Testament for Christians to support a war on drugs by the government. And it is the theological reason that I wish to focus on.

Christian Inconsistency and Hypocrisy

It is unfortunate that many Christians – and probably most conservative Christians – are supporters of legislation to prohibit the doing of things like taking drugs that libertarians would consider to be victimless crimes and therefore not crimes at all. This support is inconsistent and hypocritical.

Getting stoned on crack or tripping out on LSD is, of course, not mentioned in the Bible. The closest thing would be getting drunk, which is definitely condemned:

Let us walk honestly, as in the day; not in rioting and drunkenness, not in chambering and wantonness, not in strife and envying (Romans 13:13)

And be not drunk with wine, wherein is excess; but be filled with the Spirit; (Ephesians 5:18)

Yet, every bad thing that could be said regarding drug abuse could also be said of alcohol abuse – and then some.

Alcohol abuse is a factor in many drownings, home, pedestrian, car, and boating accidents, suicides, fires, violent crimes, child abuse cases, sex crimes, divorces, and fetal abnormalities. The number one killer of young people under twenty-five is alcohol-related automobile accidents. Alcohol abuse is one of the leading causes of premature deaths in the United States. It can also be a contributing factor in cases of cancer, mental illness, and cirrhosis of the liver.

Although the manufacture and sale of alcohol is heavily regulated by the federal and state governments, anyone is free to drink as much as he wants in his own home without fear of reprisal. Except for a small number who want to return to the days of Prohibition, Christians are woefully inconsistent and hypocritical when they call for the government to wage war on drugs but not on alcohol.

Sin and Crime

We know that murder, robbery, and rape are both crimes and sins, but everything the state or the authorities brand a crime is not necessarily a sin. This has been true in all ages.

In the Old Testament, the Hebrew midwives were commanded by the state to kill any newborn sons (Exodus 1:16). But because "the midwives feared God," they "did not as the king of Egypt commanded them, but saved the men children alive" (Exodus 1:17).

In the book of Daniel, we read that King Nebuchadnezzar "made an image of gold" (Daniel 3:1) and decreed that when the music started, everyone was to "fall down and worship the golden image" (Daniel 3:5). The three Hebrew children – Shadrach, Meshach, and Abednego – defied the king and refused to worship the golden image, for which they were cast into a burning fiery furnace (Daniel 3:18-20).

In the New Testament, the apostles Peter and John were imprisoned by the authorities for preaching and then brought before them and commanded "not to speak at all nor teach in the name of Jesus" (Acts 4:18). But instead of being in subjection, they replied: "Whether it be right in the sight of God to hearken unto you more than unto God, judge ye. For we cannot but speak the things which we have seen and heard" (Acts 4:19-20).

After this incident, some apostles were again brought before the authorities and asked: "Did not we straitly command you that ye should not teach in this name? And, behold, ye have filled Jerusalem with your doctrine, and intend to bring this man’s blood upon us" (Acts 5:28). It was then that the apostles uttered the immortal line: "We ought to obey God rather than men" (Acts 5:29).

No Christian could read these accounts and say with a straight face that everything the state labels a crime is a sin. The Bible is very clear about what sin is. Sin is "whatsoever is not of faith" (Romans 14:23). Sin is transgressing the divine law (1 John 3:14). Sin is knowing to do good and doing it not (James 4:17). Sin is "all unrighteousness" (1 John 5:17). But if not all crimes are sins, then why are some Christians often so quick to nod in agreement when it comes to the state’s war on drugs? The only explanation is that some Christians think that disobeying the state is itself a crime. They have made the state into a god. They have violated the First Commandment.

But taking drugs to get high is a sin, says the Christian drug warrior. Agreed. But should it be a crime?

Victimless Crimes

There is another side of sin/crime coin: not all sins are crimes. If they were, then everyone would be in trouble, Christians included, for the Bible says that "there is not a just man upon earth, that doeth good, and sinneth not" (Ecclesiastes 7:20). Saying that not all sins are crimes is just a Christian way of rephrasing what was said by the nineteenth-century classical liberal political philosopher Lysander Spooner:

Vices are those acts by which a man harms himself or his property.

Crimes are those acts by which one man harms the person or property of another.

Vices are simply the errors which a man makes in his search after his own happiness. Unlike crimes, they imply no malice toward others, and no interference with their persons or property.

No Christian would be in favor of criminalizing all sins. Not when the Bible says that "the thought of foolishness is sin" (Proverbs 24:9). Why, then, are some Christians so quick to applaud making some sins criminal just because the state happens to select them and not others?

There are two types of victimless crimes: the immoral and the moral. This is because God’s law never changes. What the state declares to be a crime one day can be declared not to be a crime the next day. Immoral victimless crimes are crimes that are sins in the eyes of God even if the state one day declares them not to be crimes; moral victimless crimes are crimes that have been labeled as such by the state that are not, in and of themselves, sins in the eyes of God. But either way, every crime needs a victim.

Christian Ignorance

The Christian’s ultimate rule of faith is the New Testament, not canon law, church tradition, church councils, papal decrees, creeds and confessions, the musings of televangelists, the opinions of theologians, the sermons of some popular preacher, denominational pronouncements, church covenants, and not even the Old Testament, although "whatsoever things were written aforetime were written for our learning, that we through patience and comfort of the Scriptures might have hope" (Romans 15:4).

There is no support in the New Testament for the idea that Christians should seek legislation that would criminalize victimless acts like taking drugs. Specific sins are mentioned that are in fact crimes, like murder (Romans 1:29), stealing (Ephesians 4:28), rioting (Romans 13:13), and extortion (1 Corinthians 6:10). But what we mainly see in the New Testament are admonitions about how Christians should behave:

Recompense to no man evil for evil. Provide things honest in the sight of all men. (Romans 12:17)

As we have therefore opportunity, let us do good unto all men. (Galatians 6:10)

Let no corrupt communication proceed out of your mouth. (Ephesians 4:29)

Abstain from all appearance of evil. (1 Thessalonians 5:22)

Then there are the lists of vices for Christians to avoid: adultery, fornication, uncleanness, inordinate affection, covetousness, anger, malice, blasphemy, filthy communication, effeminacy, idolatry, hatred, strife, reveling, witchcraft, evil speaking, envy, lying, and bitterness. Should people be fined or jailed for these things if they don’t result in harm to someone else’s person or property? Then why should they be fined or jailed for taking drugs?

There are no indications anywhere in the New Testament that Christians should seek or support making these things crimes. Where did the Apostle Paul, in his travels throughout the Roman Empire, ever express support for any type of legislation? When did he ever tell people who were not Christians how they should live their lives? It is unfortunate that many Christians who support the drug war would support legislation against almost anything they considered to be bad behavior – as long as it stopped short of their particular vice.

Christian Failure

It is not the purpose of Christianity to change society as a whole outwardly; it is the purpose of Christianity to change men as individuals inwardly. The Christian is in the world, but not of the world. He is to "have no fellowship with the unfruitful works of darkness, but rather reprove them" (Ephesians 5:11), not legislate against them. The Christian is to "live peaceably with all men" (Romans 12:18). Christians are to pray for those in authority that they (Christians) "may lead a quiet and peaceable life" (1 Timothy 2:2). The attitude of the Christian should be to mind his "own business" (1 Thessalonians 4:11) and not be "a busybody in other men’s matters" (1 Timothy 4:15).

I believe that Christians have for the most part failed to fulfill their calling. Instead of making converts and instructing them in the biblical precepts of Christian living, they turn to the state to criminalize what they consider to be immoral behavior. Instead of changing people’s minds about what is and what is not acceptable in society, they seek to use the state to change people’s behavior. Instead of being an example to the world, they want to use the state to make the world conform to their example. Instead of educating themselves and other Christians about what is appropriate behavior, they rely on the state to make that determination. Instead of being the salt of the earth and the light of the world, they want the state to assume those roles. Instead of minding their own business, they mind everyone else’s business.

Christian Folly

Christians are making a grave mistake by looking to the state to legislate morality. The state is no real friend of religion, and especially not of Christianity. Why do so many Christians defend, support, and make excuses for the state, its politicians, its legislation, and its wars? Why would Christians even think of looking to the state to enforce their moral code?

It is not the purpose of Christianity to use force or the threat of force to keep people from sinning. Christians who are quick to criticize Islamic countries for prescribing and proscribing all manner of behavior are very inconsistent when they support the same thing here. A Christian theocracy is just as unscriptural as an Islamic theocracy.

But instead of greeting with a healthy dose of skepticism the state’s latest pronouncement about what substance needs to be banned, regulated, or taxed, many Christians wholeheartedly embrace it. Instead of looking internally for funding, they look to the state to fund their faith-based initiatives.

Most Christians simply have too high a view of the state. They are too quick to rely on the state, trust the state, and believe the state. Sure, they may criticize the state because it permits abortion, but they generally fail to discern the state’s true nature.

Economist William Anderson has summed it up nicely:

Most conservative Christians abhor libertarianism because they see it as promoting a permissive lifestyle, from abortion to taking drugs. Yet, what they fail to understand is that the restrictive, prohibition-oriented state that they are trying to create (and also preserve) is much more likely to take away all liberties than a state that gives people permission to live as they wish.

Conclusion

Although drug abuse is a great evil, the war on drugs is an even greater evil. Christians should not compound these evils by supporting a war on behavior the government doesn’t approve it. If getting high is against God’s law. Then, as columnist Charley Reese once said: "Presumably God will enforce his own laws. You won’t find in the Christian Bible any passage that says the responsibility for enforcing God’s laws rests with the secular state." And furthermore:

Christianity is a personal religion, not a tribal or state religion. If you wish to be a Christian, then you have a personal obligation to obey the commands of the Christian religion. Whether someone else does or does not is of no concern to you. You can be a devout, scrupulously pure Christian in the midst of the most outrageous sinners. Your obligation is to obey God’s commandments, not to compel someone else to do it.

It is simply not biblical to promote legislation or crusades to punish sin that does not aggress against person or property. The proper approach to the problem of drug abuse was wisely spoken by the late economist Ludwig von Mises:

He who wants to reform his countrymen must take resource to persuasion. This alone is the democratic way of bringing about changes. If a man fails in his endeavors to convince other people of the soundness of his ideas, he should blame his own disabilities. He should not ask for a law, that is, for compulsion and coercion by the police.

That is the spirit of New Testament Christianity. It’s just unfortunate that it is a nonreligious Jew expressing such an opinion instead of the typical evangelical Christian.

Originally posted on LewRockwell.com on March 13, 2012.

Post from: LibertarianChristians.com

Should Christians Support the War on Drugs?

The Patient Protection and Affordable Care Act (PPACA), more popularly known as Obamacare, passed the Senate on Christmas Eve of 2009, passed the House on March 21, 2010, and was signed into law by President Obama on March 23, 2010. It was one of the most controversial and partisan pieces of legislation in history, with no Republican in either house of Congress voting in favor of the 2407-page bill (H.R. 3590 [PDF]).

The onerous provisions of the PPACA include an expansion of Medicaid eligibility, the prohibition of annual and lifetime coverage caps, the elimination of co-payments and deductibles for selected health-insurance benefits, guaranteed issue of insurance policies without regard to preexisting conditions, federal subsidies for the purchase of health insurance, employer mandates, more arcane insurance regulations, an increase in the Medicare tax on the “rich,” and a tax on indoor tanning services. Perhaps the most egregious part of Obamacare is the “individual mandate” that every American not covered by Medicaid, Medicare, or health insurance must purchase health insurance or pay a penalty.

Within hours of the passage of Obamacare, the attorney general of Florida, Bill McCollum, and the attorneys general of twelve other states (Alabama, Colorado, Idaho, Louisiana, Michigan, Nebraska, Pennsylvania, South Carolina, South Dakota, Texas, Utah, and Washington), filed suit in the U.S. District Court for the Northern District of Florida against the U.S. Departments of Health and Human Services, Treasury, and Labor, and their respective department secretaries, Kathleen Sebelius, Timothy Geithner, and Hilda L. Solis, challenging the constitutionality of the individual mandate.

The lawsuit was later joined by the attorneys general of thirteen other states (Alaska, Arizona, Georgia, Indiana, Iowa, Kansas, Maine, Mississippi, Nevada, North Dakota, Ohio, Wisconsin, and Wyoming), the National Federation of Independent Business, and two individuals, Mary Brown and Kaj Ahlburg.

On January 31, 2011, Judge Roger Vinson of the U.S. District Court in Pensacola struck down the Obamacare mandate, declaring, “The individual mandate is outside Congress’ Commerce Clause power, and it cannot be otherwise authorized by an assertion of power under the Necessary and Proper Clause. It is not Constitutional” (PDF). He said further,

The defendants’ argument that people without health insurance are actively engaged in interstate commerce based on the purported “unique” features of the much broader health care market is neither factually convincing nor legally supportable.

Because I find both the “uniqueness” and “economic decision” arguments unpersuasive, I conclude that the individual mandate seeks to regulate economic inactivity, which is the very opposite of economic activity. And because activity is required under the Commerce Clause, the individual mandate exceeds Congress’ commerce power, as it is understood, defined, and applied in the existing Supreme Court case law.

And because Judge Vinson reasoned that “the Constitutionality of the individual mandate is the crux of this entire case,” and “because the individual mandate is unconstitutional and not severable,” he also ruled that “the entire Act must be declared void.”

The judge then ruled on March 3 that he would honor the Obama administration’s request that his ruling be stayed while the United States Court of Appeals for the Eleventh Circuit, in Atlanta, reviewed the case. He also expressed interest in the Supreme Court hearing the case because “the sooner this issue is finally decided by the Supreme Court, the better off the entire nation will be.”

After an official appeal by the government on March 8, the Atlanta appellate court, by a 2–1 vote on August 12, affirmed the judgment of Judge Vinson in a 207-page opinion that the individual mandate was unconstitutional, but rejected his argument that the mandate was not severable from the rest of the PPACA, thus rendering the rest of Obamacare “legally operative” (PDF).

On September 28, the state plaintiffs (PDF), the National Federation of Independent Business (PDF), and the Obama administration (PDF) each filed a cert petition asking the Supreme Court to hear the case. The Obama administration also issued a statement through Stephanie Cutter, assistant to the president and deputy senior advisor, affirming the constitutionality of the PPACA and expressing confidence that the Supreme Court will agree.

But Florida et al. v. Department of Health and Human Services et al. is not the only lawsuit against Obamacare. Since the PPACA was passed, there have been twenty-five other court challenges to the new health care law.

Besides the Florida case, there are two other cases where the individual mandate of Obamacare was declared unconstitutional.

In Virginia v. Sebelius, the U.S. District Court for the Eastern District of Virginia struck down the individual-mandate provision of the law on December 13, 2010. Said Judge Henry Hudson, “Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market.” But the government appealed the decision in the 4th circuit court of appeals, in Richmond, which ruled unanimously on September 8, 2011, that the district-court judgment be vacated and the case remanded back to that court to be dismissed “for lack of subject-matter jurisdiction,” because the plaintiff lacks standing.

In Goudy-Bachman v. Department of Health and Human Services, the U.S. District Court for the Middle District of Pennsylvania ruled on September 13, 2011, that the individual mandate is unconstitutional. Judge Christopher Connor wrote that allowing the individual mandate to stand “would effectively sanction Congress’s exercise of police power under the auspices of the Commerce Clause, jeopardizing the integrity of our dual sovereignty structure.”

In six other cases, the constitutionality of Obamacare was upheld. Three of them were also heard at the appeals court level.

In Liberty University v. Geithner, the U.S. District Court for the Western District of Virginia dismissed the case on November 30, 2010. On appeal, the fourth circuit court of appeals, by a vote of 2–1 on September 8, 2011, vacated the judgment of the district court and remanded the case back to that court to be dismissed “for lack of subject-matter jurisdiction” because the individual mandate is a tax that cannot be challenged in court until it is collected, which will not be until 2014.

In Thomas More Law Center v. Obama, the U.S. District Court for the Eastern District of Michigan dismissed the case on October 7, 2010. On appeal, the sixth circuit court of appeals ruled, by a vote of 2–1 on June 29, 2011, that Congress has a “rational basis” to impose the individual mandate, and the court upheld the constitutionality of the PPACA.

In Seven-Sky & American Center for Law and Justice v. Holder, the U.S. District Court for the District of Columbia dismissed the case on February 22, 2011. The decision of the D.C. circuit court of appeals is pending.

Nine other cases were dismissed by district courts for lack of standing or procedural problems. One of these cases, New Jersey Physicians v. Obama, was also heard by the third circuit court of appeals, which upheld the district court ruling. Two of the nine cases, Baldwin & Pacific Justice Institute v. Sebelius and Kinder v. Geithner, are pending at the appeals-court level.

Eight cases are still pending at the district-court level.

All these cases basically come down to the question of the “individual mandate” versus the “commerce clause.” In general, liberal judges appointed by Democratic presidents view the mandate as constitutional, while conservative judges appointed by Republican presidents view the mandate as unconstitutional. Both groups err, but in different respects.

The commerce clause is the most abused part of the Constitution. It has been used by the federal government to increase its power over the states and their citizens and to decrease the power of the states and their citizens. It has been used to force farmers to destroy crops and pay a fine for growing “too much” wheat (Wickard v. Filburn). It has also been used to criminalize marijuana for medical use even where states approve its use (Gonzales v. Raich). All the commerce clause says is that Congress has the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

During the health-care debates back in 2009, then-Speaker of the House Nancy Pelosi was asked by CNS News where the Constitution authorizes Congress to order Americans to purchase health insurance. Her response was simply, “Are you serious? Are you serious?” She answered no further, and took another question. Her press secretary then said that asking Pelosi where the Constitution authorized Congress to mandate that individual Americans buy health insurance was not a “serious question.”

Pelosi’s office has issued a statement on the “Constitutionality of Health Insurance Reform” in which she does answer the question:

The Constitution gives Congress broad power to regulate activities that have an effect on interstate commerce. Congress has used this authority to regulate many aspects of American life, from labor relations to education to health care to agricultural production. Since virtually every aspect of the health care system has an effect on interstate commerce, the power of Congress to regulate health care is essentially unlimited.

In the early history of the American republic, as Judge Vinson points out in his decision striking down Obamacare, “The word ‘commerce’ was understood to encompass trade, and the intercourse, traffic, or exchange of goods; in short, ‘the activities of buying and selling that come after production and before the goods come to rest’” (PDF). Not manufacturing, not mining, not agriculture, not insurance, not medical care.

Nowhere, as Judge Vinson further points out, “in Madison’s notes on the Constitutional Convention and in The Federalist” is the term “commerce” “ever used to refer unambiguously to activity beyond trade or exchange.” Any member of the federal judiciary should be familiar with this.

Obamacare is unconstitutional because health care and health insurance are not commerce, are not interstate commerce, and are not relevant to the commerce clause.

According to Madison — the father of the Constitution — the commerce clause

grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government.

Nevertheless, the Supreme Court, as Judge Vinson summarized from U.S. v. Lopez (1995), has “identified three broad categories of activity that Congress may regulate under its commerce power”:

First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.

But even under the widest possible interpretation of the commerce clause, the individual mandate is still unconstitutional. In the PPACA, Congress has assumed the power to create commerce by forcing individuals to purchase health insurance and to regulate inactivity by penalizing individuals for not doing so. Obamacare moves the country closer to a single-payer system; that is, socialized medicine, something that Democrats in Congress have sought to institute since the presidency of Harry Truman.

When the Supreme Court decides to rule on the constitutionality of Obamacare, it will have to decide two questions: whether the individual mandate is constitutional, and whether it is severable from the rest of the health care law.

There is something far more important, however, that the Supreme Court will not be deciding: whether Congress has the authority to legislate concerning health care in the first place.

Nancy Pelosi’s aforementioned “Constitutionality of Health Insurance Reform” says

Reform opponents continue to spread myths about components of America’s Affordable Health Choices Act, including the nonsensical claim that the federal government has no constitutionally valid role in reforming our health care system — apparently ignoring the validity of Medicare and other popular federal health reforms.

The federal judges who found the individual mandate unconstitutional actually agree with Pelosi on this point. Here is Judge Vinson in his original decision that declared Obamacare unconstitutional:

For the reasons stated, I must reluctantly conclude that Congress exceeded the bounds of its authority in passing the Act with the individual mandate. That is not to say, of course, that Congress is without power to address the problems and inequities in our health care system. The health care market is more than one sixth of the national economy, and without doubt Congress has the power to reform and regulate this market. That has not been disputed in this case. The principal dispute has been about how Congress chose to exercise that power here. (PDF)

And here are Judges Joel Dubina and Frank Hull of the 11th circuit court of appeals in Atlanta, stating that although the individual mandate is unconstitutional, Congress still has broad power to legislate concerning health care:

We conclude that the individual mandate contained in the Act exceeds Congress’s enumerated commerce power. This conclusion is limited in scope. The power that Congress has wielded via the Commerce Clause for the life of this country remains undiminished. Congress may regulate commercial actors. It may forbid certain commercial activity. It may enact hundreds of new laws and federally-funded programs, as it has elected to do in this massive 975-page Act. But what Congress cannot do under the Commerce Clause is mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die. (PDF)

As demonstrated at length throughout our opinion, Congress has broad power to deal with the problems of the uninsured, and it wielded that power pervasively in this comprehensive and sweeping Act. As to the individual mandate provision, however, Congress exceeded its enumerated commerce power.

Because the belief that government should intervene in some way into health care is so pervasive and systemic, the question of whether Congress has the authority to legislate concerning health care was not and will not be considered by any federal court. And that is unfortunate, because strict constitutionalists recognize that the Constitution nowhere authorizes the federal government to have anything to do with health care or health insurance.

The Constitution nowhere authorizes the federal government to provide a health-care safety net, a prescription drug plan, vaccinations, medical treatment, or health insurance subsidies.

The Constitution nowhere authorizes the federal government to ensure that everyone has access to affordable health care or insurance, to eliminate co-payments and deductibles, or to guarantee issue of insurance policies without regard to preexisting conditions.

The Constitution nowhere authorizes the federal government to fund clinical trials, laboratories, community health centers, medical research, or family planning.

The Constitution nowhere authorizes the federal government to mandate medical licensing or force hospitals to treat anyone regardless of their ability to pay.

The Constitution nowhere authorizes the federal government to have programs like Medicare, Medicaid, SCHIP, or HIV/AIDS prevention initiatives.

The Constitution nowhere authorizes the federal government to have agencies like the National Institutes of Health, the FDA, or the Department of Health and Human Services.

The Constitution nowhere authorizes the federal government to regulate hospitals, nursing homes, the health-insurance industry, pharmaceutical companies, organ sales or donations, medical devices, medical schools, physicians, dentists, nurses, midwives, psychiatrists, psychologists, pharmacists, or practitioners of holistic, chiropractic, homeopathic, nutritional, or other forms of alternative medicine.

Libertarians, of course, also recognize that not only are these things unconstitutional, they are beyond the purpose and scope of a government limited to the protection of life, liberty, and property.

The Supreme Court may overturn the individual mandate or the whole of Obamacare, but neither of those actions will restore a free market in health care.

Originally published at The Future of Freedom Foundation on October 11, 2011.

Post from: LibertarianChristians.com

The Supreme Court and Obamacare

In today’s political climate, a hot button issue is the legalization of drugs and more specifically that of marijuana. In this essay, I hope to convince you of two things:

1. That the Constitution does not grant the authority to deal with matters of drug prohibition to the Federal Government.
2. That mixing government and morality is highly dangerous, and as Christians we should be willing to help those who are held in the firm grasp of drug addiction.

Constitutional Reasoning Against Prohibition

As a (Christian) libertarian one of the things in the debate over drug legalization that troubles me is the notion that Federal law trumps state law. When the Founding Fathers wrote the Constitution, they delegated to the Federal Government a list of 18 enumerated powers by which the government had the authority and responsibility to fulfill. They also wrote the 9^th and 10^th amendments, which delegate all other powers to the individual states or to the people of those states. To defend their position proponents of drug prohibition will immediate fall back on the “Supremacy Clause,” and either through willful or forgivable ignorance they forget an essential element to the entire issue: what the Founding Fathers said about the Supremacy Clause.

William Davie, a delegate to the Constitutional Convention from North Carolina said:

“This Constitution, as to the powers therein granted, is constantly to be the supreme law of the land. Every power ceded by it must be executed without being counteracted by the laws or constitutions of the individual states. Gentlemen should distinguish that it is not the supreme law in the exercise of power not granted. It can be supreme only in cases consistent with the powers specially granted, and not in usurpations.”

From The Debates in the Several State Conventions on the Adoption of the Federal Constitution.

Mr. Davie’s point is that the prerogatives of the Federal Government, those eighteen enumerated powers, and any laws to that affect, do hold sway over any laws that emanate from the states, but that this authority does not, nor should it be interpreted to exceed, those 18 enumerated power. Anything not enumerated in the Constitution as an area of authority of the Federal Government is the authority of the states or the people. For the prohibitionist point to be valid they would have to cite at least one of the 18 enumerated powers which might in any way give such authority, and having reviewed those eighteen specific enumerated powers it is my opinion that such a grant of authority does not exist. That being the case, what bolsters my opposition on a Constitutional level to the “Supremacy Clause” argument are the aforementioned 9^th and 10^th amendments. The 9^th Amendment to the United States Constitution states the following,:

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

This does further damage to the “Supremacy” argument because it clearly indicates that the Federal Governments authority is limited to those eighteen enumerated powers in the Constitution. I could leave my argument there, but to be sure that there is no flaw I would offer an explanation as to the 10^th Amendments meaning as well. The 10^th Amendment to the United States Constitution reads as follows, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Again, this clearly indicates that the areas of authority of the Federal Government are limited and defined, or enumerated. And that any and all other areas of power are the prerogative of the individual states or the people.

Arguments in favor of the “Supremacy Clause” are at the least unfounded, and at their worst are an interpretation that does away with key elements of the Constitution, the 9^th and 10^th Amendments, and ultimately make the Constitution a dead letter, as well as making it more easy to simply do away with the rights of the people by Legislative decree.

Moral Reasoning Against Prohibition

First, I want to make one point absolutely clear. Yes, I am arguing for the legalization of drugs, especially marijuana. Does that mean that the consumption of drugs has garnered my tacit approval? No.But for intelligent people to argue against the notion that a man should be allowed to consume in any fashion any substance he chooses is to grant a quiet license to the Federal Government. This quiet license allows the government to legislate on any and all forms of morality, and it goes without saying government is not the best arbiter of what is moral. If the government can legislate on the morality of consuming a potentially dangerous substance where does its assumed authority end? Does it have the right to legislate against speech it deems immoral or dangerous? Does it have the right to bar free individuals from congregating together for the purpose of perpetuating the furtherance of a shared belief that the government views offensive or dangerous? Does it have the right to tell us how to raise our children, where we send them to school or what we teach them ourselves? Or what we teach them about our religious and personal views? Does the government have the right to muzzle our minister, priest, rabbi or cleric in the name of morality? Would we abide by the entrance of a bureaucrat in to our place of worship to tell our minister, priest, rabbi or cleric what he can or cannot preach/teach? Of course not! None of us would abide by the formation of a government agency tasked with the unconstitutional implementation and oversight of such things, nor would we abide by a bureaucrat coming into our home and telling us what books, toys, clothes and food are good or not for our children.

This dependency on government is dangerous and hypocritical. It is dangerous because it does not take into account individual responsibility. It is hypocritical because many who call for prohibition would overwhelmingly defend their right to decide themselves on other matters relating to their own body and beliefs and those of their families. Let us be clear, I am not calling for a libertine society where anything goes. I am calling for individual responsibility. The purpose of the law should be to protect individual rights to life, liberty and the pursuit of happiness.

We live in a country known for its desire to help, to donate money to charitable, social, religious, and first aid programs. The tsunami in the countries of the Indian Ocean, and more recently the earthquake in Haiti are prime examples of this. The large sums of money, reaching the millions, if not billions of dollars, are an indication that a large portion of society could be willing to donate to organizations or programs whose stated goal or more, is to rehabilitate those who are snared in the vice of habitual drug use. This in essence would give individuals the social, secular and religious impetus to open such institutions. And as it relates to Christianity, it is a perfect avenue for healing the body and soul of those on the fringes of society. The prohibitionist argument, it seems, has ensnared well-intentioned Christians in the notions that all drugs users should be locked up and the key thrown away. We see far less compassion today for habitual drug users than Jesus himself had for a prostitute and a man possessed. Jesus Christ did not see an infirmed man, foaming at the mouth and spouting nonsensical ravings. Nor did he see a filthy harlot. He saw a man and a woman, guilty of sin and on their way to an everlasting hell, and in his merciful love, he stooped to forgive one, and worked a miracle in forgiving the other. As far as drug use is concerned, there remains one key question. When are professing Christians going to stop pontificating about charity and kindness and start putting those principles into practice? Instead of asking coercive government to assume a moral responsibility it was never intended to take, we should be diligently seeking to aid those whom society views as disposable, unwanted or undesirable. I am reminded that for all our modernity there are still those in this country, like the homeless, and drug addicts of the Philippines, who I have seen with my own eyes, who still need our help both physically, financially, and spiritually. What of them? Will we leave them hung out to dry? Or will we use our freedom to help those in need, and to bring them the Gospel which God gave us and decreed that we should take to all mankind.

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Why would Christians want prohibition?

Why can’t American’s kick the habit of engaging in non-necessary risky behavior and recreation, even after studies have proven it increases the odds of dying younger?  Some 20 million people die each year engaging in activities other than eating, sleeping, or building shelter; non-essential activities that should simply be avoided if American’s are to become healthier and have a longer lifespan.  Bureaucrats remain baffled as to why, despite the research and educational campaigns, people continue to do things like drive to the shopping mall on the weekend, an activity that increases the likelihood of non age-related death by 100 times.

“We need to kick this deadly habit of having fun”, the surgeon general warned, “Statistically, every 100 days of fun reduces lifespan by a few hours. And we all know, the best hours of life are those last few.  Why sacrifice them for a few thousand hours of fun during your young, healthy years?”  The health department produced a new list of recommended non-activity that it said, “could save millions of lives and raise the average lifespan from 78 to 82.” The surgeon-general also has put out a warning against the NFL Play60 campaign, which encourages kids to have 60 minutes of physical activity per day. “As pleasurable as this might be,” he said, “60 minutes a day is not worth your life! Don’t risk it!”

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Surgeon General Tries to “One-Up” Homeland Security in Fear Mongering

The government and special interest groups working through the government claim they are “here to help” you. But no matter how good their intentions, usually they end up violating your rights. For instance, most people would agree that substance abuse is bad, whether that substance is heroin or over the counter sleeping pills. Most people would also agree that the doctor, the lawyer, the nutritionist, the hairdresser and the contractor you do business with should know what they are doing. Yet, the essence of natural rights is that self-ownership and freedom of association are not contingent upon man-made legislation but are inherent in each individual. The real question then, is not whether substance abuse is bad, or whether it is good for a person to have the proper training in their chosen profession, but if anyone should be able to tell you what you can or cannot consume, inhale, drink, inject into yourself, or with whom you can contract. The answer is NO — you are the only one who has the right to make this decision. Any coercion exerted by the government violates your individual rights, grossly misallocates economic resources, and distorts the market. It’s a simple yet powerful concept: you own yourself.

Restrictions or bans on substances violate property rights. In many countries, governments (or as some have called them, “food Nazis”) have taken to banning all sorts of items, such as trans-fats, foie gras, and the smoking of cigarettes — a clear violation of property rights. If a restaurant owner believed her patrons would prefer foods without trans-fats, she would be smart to prepare foods without those fats. A bar owner who sees that many customers would rather have an adult beverage without smelling of smoke would ask his patrons not to light up. But, even if the property owner made a decision that others disagree with, or one that goes against market trends, that is his prerogative. Consumers are always free to spend their dollars elsewhere.

Restrictions or bans on substances are inefficient and impossible to enforce. The war on (some) drugs is a war that cannot be won. After a group of people (i.e. the Drug Enforcement Administration, legislators trying to appear “tough on crime,” etc.) deem a particular substance “illicit,” money is taken from productive members of society to fund what is now a $40 billion per year anti-drug campaign. With 25% of those in state prisons and 55% of those in federal prison incarcerated for a drug-related offense, this failed government policy means the U.S. has the highest incarceration rate in the world and the largest number of individuals behind bars in absolute numbers. Not exactly the “land of the free.” Further, making substances illegal does not lessen demand for them but only moves them to the black market where purity is questionable, where contractual disputes are resolved through violence rather than in court, and where the price is artificially high. This allows organized crime to thrive and pushes desperate users into crime to pay for their addiction.

Occupational licensing violates your right to voluntarily make contacts. It is no secret that those who oversee licensing requirements have an incentive to limit their competition. By buddying up with legislators to create and score the tests required for a license to “legally” work in their profession, plumbers, hairstylists, contractors, doctors and others claim to act to “protect” the public from shoddy workmanship or services. This serves only to protect them from competition, which drives up prices for the consumer. By denying consumers the right to hire who they want for a particular job it violates their right to voluntarily reach a contact with another person. And it violates the rights of an individual to choose their profession. If the free market forces of competition were allowed into these professions, it would drive down cost and raise quality because those who do a bad job or defraud people will be exposed for doing so, and cannot hide behind a government-issued license.

The regulation of pharmaceuticals violates individual rights and distorts the market. The Food and Drug Administration, another agency created under the auspices of “protecting us,” is responsible for countless deaths due to the barriers (in terms of time and money) it puts between a drug and the market. In a true free market, consumers would have the right to buy and consume drugs at their discretion. For determining the safety and efficacy of a drug, they will likely turn to their doctors, Consumer Reports-type associations that rank drugs, and other reviews for advice. And if a drug fails to deliver on its promises it will gain a negative reputation and will be avoided, possibly causing the manufacturer to go under. This is your life, not some bureaucrat’s.

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Who Owns You?

Smoking bans have gone into effect in many jurisdictions, mostly indoors (bars, restaurants, workplaces, casinos, even apartments and condos) but also outdoors (beaches, in front of public buildings, parks and stadiums). Under the auspices of “protecting people” the government tries to discourage individuals from smoking by levying “sin taxes” on the cigarettes they buy and prohibits smokers from lighting up in places they share with non-smokers. To dissuade people—especially young folks—from starting to smoke, the government has banned cigarette advertising from TV and radio.

Why we oppose anti-smoking legislation:

Smoking bans violate property rights. By legislating against smoking, the government initiates force. It initiates force against property owners—owners of bars, restaurants, private workplaces, apartments and condos—by prohibiting them from deciding whether to allow their employees, customers, guests and tenants to smoke. By contrast, none of these people are violating anyone’s rights because they are not initiating physical force. Smokers are not forcing anyone to endure their smoking; people are free to leave a smoky environment. No employer is forcing anyone to work in a place where many people smoke. More importantly, those who choose to work in establishments where smoking is allowed did just that—choose. There is no right to a job, and the employee freely weighed the pros and cons prior to taking the position. The government also initiates force against cigarette manufacturers and broadcasters by banning them from advertising on TV and radio even though an advertisement does not force anyone to smoke. So, the government is unjustly violating citizens’ rights by legislating against smoking.

Smoking bans violate self-ownership. The government does not have the right to protect you from doing what you want with your own body. Smoking may be unhealthy, but acknowledging and taking that risk is your choice. The government uses a gun to prevent you from harming yourself—now that is irony!

Smoking bans only further entrench the Nanny State. Anti-smoking legislation is a blatant example of the government using force to arbitrarily prevent people from doing things that the government deems harmful. Consider, for example, that the government does not prevent you from consuming alcohol, bungee jumping, becoming a fireman or a coal miner, or sky diving all activities that are potentially damaging to one’s health.

Smoking bans distort the free market. Many people realize that smoking can be a nuisance to nonsmokers. Hence, many restaurants had voluntarily become smoke-free absent of government coercion simply because of customer demand. Many workplaces had already made rules about where to smoke to address the needs of their nonsmoking employees. Many home owners ask guests not to smoke in their homes, and many smokers do not smoke in their home because they have nonsmokers living there. Many parents, even those who smoke, are perfectly willing to limit their children’s exposure to smoke if they believe it is harmful; no law is needed when a mother’s protective instinct is already operative.

Smoking bans aren’t supported by science. As for the dangers of second-hand smoke, while it is unpleasant, most studies investigating its effects looked at people who are exposed to it on a daily and prolonged basis, such as individuals who live with smokers, not people who go to bars, restaurants or are outside in the immediate vicinity of a smoker. Those studies did not always find that second-hand smoke harmed anyone.

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Smoking is Healthier than Fascism