Mike Magee

The official title of this course is “The Right to Health Care and the U.S. Constitution.” On the surface, it sounds like a straight forward topic – a simple presentation. But a gentle scratch at the surface reveals a controversy that literally dates back 250 years. And so, as you see here, I’ve added a clarifying subtitle – A “right”, a “privilege”, or simply a “necessity.”

I would like to begin by cuing up the questioning, “What are we doing here today?” Clearly we are (or will be) learning, and exploring and witnessing history. But, as you will see, we will be investigating as well, in search of the truth. Hopefully, we will have ample time to share our insights with each other.

The work that went into this course dates back a year. It has been a complicated and complex journey, with many moments of discovery. Many times along the way, I have been forced to stop, and ask myself, “What does this have to do with health care.” Of course, as we’ll discover in Session II, that depends on how you define “health.”

But what has become equally clear is that the provision of equitable health services in a manner that is part “goodness” and part “fairness” has been purposefully distorted in this country from the very beginning. Were I to write a book that shared the material found in these four lectures, it would be simply titled, “Encumbered.” So I plant that word in your minds, quite deliberately, at the outset of this adventure.

Those of you who have taken my courses before know that I like to begin with a brief outline of what we will be discussing – so here is our agenda.

Session I provides an introduction to relevant law including the U.S. Constitution and early case law. A brief warning here – this may be somewhat painful, but I assure you, it is necessary. My goal over the next 90 minutes is to familiarize all of us with the language and intent of the Founding Fathers of this nation. This requires historical perspective, as well as an understanding of the people and places that shaped a controversy that has never been fully resolved in this nation.

In Session II, we’ll cover a century of growth and enlightenment, as women fight for control of their own bodies, people of color and native Americans continue to struggle for their rights, and the debate over health and health care enters the global arena.

In Session III, we’ll review a number of landmark cases and the debates they have ignited in the public square.

And finally, in Session IV, we’ll arrive in the modern era, with its’ extreme political divisions, and a pandemic that has claimed over 700,000 American lives, and over 5 million worldwide.

When I began to do the research in preparation for today, one of the very first articles I read was this 2010 piece in the National Review written by self-described Conservative/Libertarian, John Graham, titled: “The Constitution and Your “Right to Health Care.”

It alerted me from the start that this debate, on the highest policy levels, was not only about language and semantics, but also power and bias. In the article, Graham writes, “I’m willing to concede a ‘right to health care,’ because once it’s defined as a right, the entire weight of the Constitution comes down against federal (and perhaps even state) control…Where the Constitution enumerates rights, it’s pretty clear that the Founders’ bias was that your ability to enjoy any right was dependent on Congress not meddling in it.”

Besides revealing his own anchoring bias that government was an ever present danger, Graham was signaling that the argument over “rights” in our nation goes way, way back, literally to the birth of our nation, and arguably continues to this very day. If we allow his to be the final word, we must abandon practicality, prudence, justice, and wise stewardship of resources. Left alone, a battle over the Constitutional “right” to health care, a literal life or death struggle for many in our nation, has been strangely stripped of emotion, compassion, or even self-reflection.

In John Turnball’s famous painting, the Committee of Five on July 4, 1776,  – John Adams, Thomas Jefferson, Robert Livingston, Benjamin Franklin, and Roger Sherman – are seen presenting their draft of the Declaration of Independence to the full Congress. It’s second paragraph begins, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…”

Constitutional scholars are quick to remind us that this is part of a Preamble or introduction to the 1776 Declaration of Independence and has nothing to do legally with the U.S. Constitution as it was written a decade later. Those same scholars would likely add that this is not the only Preamble. There is also a Preamble to the U.S. Constitution with which we are all familiar.

That Preamble reads: “We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

As we will see, jurists over the past two plus centuries have reminded us that this Preamble as well carries no legal weight and is not enforceable in any court in the land. It’s intent was to introduce us to the values and tone that would guide the writing of the Constitution itself – values like justice, liberty, prosperity and self-defense. But it is not technically part of the U.S. Constitution.

Nonetheless, words do matter. And we can learn a lot about a nation’s values and priorities by looking at their slogans. Consider our “Life, Liberty, and the Pursuit of Happiness”, alongside other nation’s slogans. For example, the 1876 Canadian Constitution decide to highlight “Peace, Order, and Good Government.” The 1848 French Constitution champions “Liberté, Egalité, Fraternité”. And the United Kingdom bedrock 1215 Magna Carta says in part, “…to no one will we sell, to no one deny or delay right and justice.”

States have slogans too. The New England states claimed some of the earliest. I have chosen to highlight just two – neighbors that I think most would agree give off very different vibes. Most here know by heart New Hampshire’s from viewing their license plates. It defiantly shouts, “Live free or die.” The kinder, gentler neighbor, Vermont, offers an alternative, “Freedom and Unity.” Finally for those interested, Connecticut embraced Latin with Qui transtulit sustinet (“He who transplanted sustains”).

We tend to believe that life began in earnest for our nation the day the Declaration of Independence rolled off the printing press. But the reality was there was no money for this new government, and no approved way of getting resources. The grand sounding document was a toothless tiger for a nation ill prepared to govern itself. Washington was being asked to head up a 625-man army that was poorly fed and clothed. We had defaulted on our foreign debt at the time. Spain had closed passage by colonists into New Orleans, and Barbary pirates patrolled unmolested off our coasts. British backed Creek Indians were raiding settlers in Georgia, and by 1786, locals were struggling to put down a rebellion in Springfield, Massachusetts ignited by a former Revolutionary War Captain, Daniel Shay, who had gone bankrupt, due (he believed) to excessive state taxes.

It took until 1781 to coalesce a meeting of representatives of the independent minded 13 colonies to ratify the 13 original British colonies as states. Each had its own leaders, its own point of view, its own laws, and its own suspicions. For example, in 1783, when John Adams, Benjamin Franklin, and John Jay negotiated a preliminary peace treaty with Britain at the Treaty of Paris, New York and South Carolina were still prosecuting British Loyalists.

The young nation was in such turmoil in those early years that the original 1781 Articles of Confederation could hardly take hold. During those years, we were still creating legends, like Lieutenant Colonel Daniel Boone who led the Kentucky militia in its defeat of a stubborn legion of Loyalist and Native Americans at the Battle of Blue Licks, ten full months after General Charles Cornwallis had officially surrendered and supposedly brought the war to an end.

On April 11, 1783, our newly formed but under-funded Congress signed on to Britain’s surrender. But domestic tranquility lagged. A month earlier Major John Armstrong warned the very same Congress that Continental Army soldiers might mutiny were they not soon provided the 5-year lump sum payment for services that they had been promised. Eight months later, on November 23, 1783 Washington delivered his formal “Farewell Address to the Army” and later returned to Mount Vernon, a setting that 577 slaves would call home during his lifetime. This stands in bold contrast with the commonwealths of Pennsylvania, Massachusetts and New Hampshire that together outlawed any future importation of enslaved African people to their states on December 30, 1783.

The fledgling new Congress finally began to focus on finances in April of 1784, creating a Treasury Board. Commerce was the main focus, and defense, with Spain blocking the lower half of the Mississippi River in June of 1784. Still the young nation had big dreams and celebrated in August of that year when the Empress of China, an American merchant marine ship, arrived fully loaded in Canton, China. Peace was in the air at home as well as with the Six Nations of the Iroquois who had officially relinquished all territory west of the Niagara River.

In early 1785, the new nation finally began to assemble a federal government in earnest. On February 24, 1785, John Adams was appointed ambassador to England. The next month, Henry Knox became the first Secretary of War, and Thomas Jefferson, minister to France.

The 1781 Articles of Confederation, which contained the original outline for constructing a government, were already recognized as lacking, and in serious need of revision. And so, on May 25, 1785, a Constitutional Convention was convened in Philadelphia and Massachusetts. The great minds were already fast at work. For example, James Madison, in publishing his “Memorial and remonstrance Against Religious Assessments” in June of that year staked out the original claim for separation of Church and State. Expansive views of geographic dominance were also on the table. The Land Ordinance of 1785 provided a mechanism for division of the northwestern territories into parcels costing $640 each.

Money was the dominant theme for 1786, specifically money to run a national government. In June of that year, New Jersey refused to pay their fair share, pointing to the flawed 1781 Articles of Confederation as their justification. By the summer, Thomas Jefferson declared the adopted Spanish silver dollar as our new currency, but at the same time OK’d the issuance of unstable paper currency.

When a Constitutional Convention reconvened in Philadelphia on May 25, 1787, they came to work. The original Articles of Confederation of 1781 were the starting point. But by September 17th, they had a new Constitution to debate, and by December, Delaware, Pennsylvania, and New Jersey had signed on. They still needed six more states in order to formally ratify the document. The issue of slavery had already broken out into the open. The Northwest Ordinance of 1787, signed on July 13, created a process for new states and outlawed slavery north of the Ohio River.

This very serious debate was in full swing in pursuit of  “consent of the governed” when Alexander Hamilton, James Madison, and John Jay penned the 85 articles and essays that constituted “The Federalist Papers.” Published under the collective pseudonym, “Publius”, their goal was to advance the ratification of the newly proposed Constitution.

In their very first article, Alexander Hamilton wrote: “It has been frequently remarked, that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not, of establishing good government from reflection and choice, or whether they are forever destined to depend, for their political constitutions, on accident and force.”

And so, as these very early writings suggest, we sanctioned this “war of words” in the hope of avoiding more deadly confrontations involving “accident and force.”

As I’ve already suggested, Graham’s argument is anything but new. The anti-Federalists weighed in right from the beginning about the very same concerns with these words: “…inasmuch as it would be impossible to list all rights, it would be dangerous to list some and thereby lend support to the argument that government was unrestrained as to those rights not listed.”

In direct response and rebuttal, James Madison replied, “It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.”

In this, he was referring to what became the 9th and 10th Amendment to the Constitution, part of what we call “The Bill of Rights” – the first 10 of some 27 permanent changes or additions to the rules of play of our government.

So you can see, very early in my own preparations, and now by transference to you today, we are drawn together into the nitty gritty of Constitutional Law. So let’s together review a few things at the outset.

The first words of our Constitution, our Preamble, read: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

I have underlined “promote the general Welfare” – as I will other important words and phrases, because they have been used, from time to time over the past 200 plus years, to argue for or against certain services or proposed obligations or expectations that our citizens might impose upon their government.

Under the Preamble, we find the Articles of Confederation briefly summarized here. In the simplest form, they define the architecture of our government – the structure and powers assigned to Congress, the Executive branch, our Judiciary; our system of courts, and the complex dance between states rights and the proposed powers of this new nation declared as the “supreme law” of the land; the subtle recognition that this is indeed a “living document” insofar as a process for making “amendments” or changes to the original document are here defined; and finally the mechanics of how these Founding Fathers will officially launch this new entity as a binding legal venture.

Each of the eight articles themselves contain complex instructions or rules for the game of governing, powers allocated to the various counter-balancing components of this new nation.

Here you see the powers delineated in just one Section – Section 8 – under Article I for Congress. Ignore for a moment the wordiness of this slide and focus only on those elements I’ve chosen to highlight in Article I, Section 8. They are Clause 1 that allows the new national government the power to “lay and collect taxes” absent which any powers granted would have been a toothless tiger.

Clause 3 provides the power to regulate commerce specifically “among the several states”, which in the end provides a controversial lever to hold out-of-control states in check. This clause has appeared again and again throughout our history in states rights debates.

And finally, Clause 18, known today as the “Necessary and Proper Clause” which allows for Congress to exercise its’ judgment in the years that will follow to exercise its power and control to maintain the Union as a thriving entity. The Founding Fathers understood that as conditions changed, this living document would need to adjust.

They didn’t have to wait long for the first changes. They were enshrined in what we call “The Bill of Rights” briefly summarized here. They were designed largely by James Madison to appease the anti-Federalists who in 1787 and 1788 were fast at work igniting a civil war in a nation that had barely drawn its first breathe. These were assurances, not that the new national government would deliver benefits to its citizens, but rather that they would not “seize” rights that the citizens of the 13 member states currently possessed and jealously guarded.

Thus the enumerated rights are often described, as John Graham did above, as “negative rights.” Madison didn’t grab them out of nowhere. They are actually derived from other sources including the Virginia Declaration of Rights, as well as the Northwest Ordinance, the English Bill of Rights, and the Magna Carta.

As it turns out, Madison was a very good listener. The original 19 listings  were eventually trimmed down by the House and Senate to just 10 and approved in 1791. Originally, Madison had wanted them inserted into the body of the Constitution, but as a compromise allowed that they would be an add-on. Even so, he added the 9th and 10th amendments to head off several states who demanded reassurances of preservation of state prerogatives and “individual freedoms” before they would sign on.

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

Amendment X states: “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.” It is useful to note, however, that Madison left wiggle-room here in not qualifying the word “delegated” with the iron-clad legal boundary of the word “expressly.”

Madison also made it clear that these protections applied only to the new national government and did not encumber the various state governments. It was only in 1868, with the passage of the 14th amendment as part of Reconstruction that citizenship and due process were extended (at least on paper) to all, and that states rights to discriminate were challenged.

For this to occur, our nation had to wage a devastating Civil War. The XIV Amendment was signed on July 9, 1868. With it, citizen rights and “equal protection under the law,” were extended to former slaves of the defeated Confederacy. This new law was bitterly contested by Southern states which were forced to ratify it in order to regain Congressional representation.

Due Process as outlined in the XIV Amendment, as we will see, became one of the most cited legal precedents as we will see in a wide range of cases including Brown v. Board of Education (1954), Roe v. Wade (1973), Bush v. Gore (2000), and Obergefell v. Hodges (2015).

The XIV Amendment is one of three Amendments tied to Reconstruction following the Civil War. The XIII Amendment abolished slavery and involuntary servitude in 1866. The XV Amendment passed in 1870 declared, at least on paper, that former slaves had the right to vote.

As with many controversies in human endeavor, the easiest way to decipher history and meaning is often “to follow the money.” Such was the case in the battle between state and federal rights. This battle engaged early and often, with Thomas Jefferson and Alexander Hamilton on opposite sides of the spectrum.

Soon after the 1788 ratification of the U. S. Constitution, Washington’s Secretary of the Treasury, Hamilton, suggested a federal bank to manage debt and currency. Jefferson, then Secretary of State, opposed it for fear of a federal power grab. Regardless, in 1791, Congress created the First Bank of the United States with a 20-year charter.

When the charter ran out in 1811, it wasn’t renewed. But then the War of 1812 intervened – requiring federal dollars – and in 1816 the Second Bank of the United States was created with the Federal government holding 20% of the equity. The divide led to the creation of two political parties – the Federalist Party and the Democratic-Republican Party whose members were committed to undermining the bank.

The battle came to a head when, in 1818, Maryland’s state legislature—levied a $15,000 annual tax on all non-state banks. There was only one – the Second Bank of the United States that was out-of-state at the time. It refused to pay. The suit rose to the Supreme Court with Maryland claiming the right to tax the national government based on their reading of the 10th Amendment claiming state protection against extension of non-enumerated rights to the Federal government.

The landmark 1819 case – McCulloch v. Maryland, defined the scope of the U.S. Congress’s legislative power and how it relates to the powers of American state legislatures. In ruling against Maryland, Chief Justice Marshall argued that:

“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”

According to Marshall, it was the people who ratified the Constitution and thus the people, not the states, who are sovereign.

In making his determination, Marshall had invoked the Necessary and Proper Clause of the Constitution (Article I, Section 8, clause 18) suggesting in so many words that the “end justified the means.”  In his view Congress was permitted to seek an objective  “so long as its end is within the scope of federal power under the Constitution.”

One such enumerated power is the power “to regulate commerce with foreign nations, and among the several states, and with Indian tribes” in Section 8, Clause 3 of Article 1.

Cornell Law professors explain, “Congress has often used the Commerce Clause to justify exercising legislative power over the activities of states and their citizens, … The Commerce Clause has historically been viewed as both a grant of congressional authority and as a restriction on the regulatory authority of the States…called “The ‘Dormant Commerce Clause’ referring to the prohibition, implicit in the Commerce Clause, against states passing legislation that discriminates against or excessively burdens interstate commerce.”

What exactly does this powerful word – “commerce” – even mean? We really don’t know for sure since the Constitution never explicitly defines the word.

Again turning to the scholars, they say, “Some argue that it refers simply to trade or exchange, while others claim that the Framers of the Constitution intended to describe more broadly commercial and social intercourse between citizens of different states.”

What experts do agree on is  “the interpretation of ‘commerce’ affects the appropriate dividing line between federal and state power.”

What does all this have to do with health care? You’d be surprised. Let me share one additional landmark case – Griswold v. Connecticut – that bridged an 80 year span, played out in the prime of our lives, and did so right here in Connecticut. The U.S. Constitution is anything but static.

Anthony Comstock, born on March 7, 1844, in New Canaan, Connecticut. He was the son of a wealthy farmer and was very close to his mother who managed his early education. His favorite activity with her was said to have been nightly reading of “Bible about saintly heroes battling satanic foes.”

They lived comfortably on their 160-acre farm with two sawmills managed by Comstock’s father, Thomas. Both parents were religious. His father led a daily prayer service and his mother drew the family in for all day services at the New Canaan Congregational Church. She was the mother of ten children, three of whom died of childhood diseases. Her own death, when Anthony was ten, resulted from massive hemorrhaging following the birth of her tenth and final child.

Following intermittent attendance at local schools, he was employed as a general store clerk in Winnipauk, Connecticut. Argumentative and self-righteous by nature, he was not above bending the law in his favor. When a local saloon owner refused to stop selling alcohol on Sundays, Anthony snuck in after hours in 1862, opening the spigots to drain on the floor, and leaving behind a threat to escalate the violence if the owner remained. The merchant moved out of town.

This would be the first of a long list of lives ruined in the years ahead. But his course was redirected by the Civil War death of his older brother, Samuel, in 1863 at Gettysburg, which led him to enlist. From a safe perch in Florida, he aggressively challenged the drinking, gambling and smoking of his comrades. A daily ration of whiskey with meals was challenged by the zealot, but drew few supporters from among the ranks.

When the Civil War ended, he joined large numbers of rural Northerners who streamed into the cities. In 1866, Comstock found a physical and spiritual home in New York City’s Young Men’s Christian Association, or YMCA. Their major thrust at the time was to address the city’s burgeoning interest in obscenity and pornography. Comstock was a one-man sting operation. He would secret himself in a bookstore, purchase banned material, and then report the store owners to police and encourage their arrest.

As he was developing a reputation, he had time to meet Margaret Hamilton, ten years his senior, and married her in January of 1871. Eleven months later they gave birth to a daughter. When she died at 6 months, they adopted a little girl named Adele. The following year, Comstock led the way for the YMCA in advancing federal anti-obscenity legislation. Comstock’s special contribution was to add material promoting contraception or abortion to the list of already banned mailings considered obscene.

On March 3, 1873, the bill titled “An Act for the Suppression of Trade in, and the Circulation of, Obscene Literature and Articles of Immoral Use” was enacted. Three days after the passage of what became known as the “Comstock Act”, Comstock himself was appointed by President Grant as a special agent of the U.S. Post Office, with authority to enforce the bill that bore his name. To aid in this effort, the YMCA incorporated in the state of New York the “New York Society for the Suppression of Vice in New York City”, and appointed Comstock the Society’s special agent with powers to make arrests.

As the self-proclaimed “Weeder in ‘God’s’ Garden,” he targeted pornography, contraceptive equipment, reproductive health materials, as well as gambling and drinking establishments. Two of his favorite slogans were “Morals, not Art and Literature”, and “Books are feeders of brothels.”

By 1915, he proudly declared that he had already arrested 3600 defendants, and, with the support of industry, the AMA, and the Catholic Church, had confiscated and disposed of 160 tons of obscene mail and literature.

None of this compares to the longer-lasting impact of this single zealot. By 1900, 24 states had enacted their own “Comstock Laws” into state statues. It would take another half century to weed them out and dismantle them. That is clearly one lesson for us today, that Federal statutes frequently spawn and help legitimize ill-advised state laws. But in addition, the tail of Comstock reminds us that our nation’s criminal minded zealots, given time, frequently over play their hand. This was certainly the case with Anthony Comstock.

Who stopped Comstock and what does that have to do with Connecticut? More on that in Session II.