The Founders’ View on National Health Care

The Founders’ View on National Health Care by Dr. Edwin Vieira, Jr., Ph.D., J.D.

Confronted with the strident debate on national health-care legislation, one must be amazed at how often the opponents of the monstrosity being cobbled together by the legislative Doktors Frankenstein in the Disgrace of Columbia fail to appeal to constitutional fundamentals.

In The Federalist No. 57, James Madison relied on a constitutional principle that, for all intents and purposes, disposes of any and every argument in favor of the present bills before Congress. Recall that a main purpose of The Federalist Papers was to refute claims that the Constitution delegated too much power to the General Government, at the expense of the States and WE THE PEOPLE. In No. 57, Madison addressed the contention that “the House of Representatives * * * will be taken from that class of citizens which will have least sympathy with the mass of the people, and be most likely to aim at an ambitious sacrifice of the many to the aggrandizement of the few”.

Madison offered a number of reasons why this argument was invalid. But most relevant here was

a fifth circumstance in the situation of the House of Representatives, restraining them from oppressive measures, that they can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society. This has always been deemed one of the strongest bonds by which human policy can connect the rulers and the people together. It creates between them that communion of interests and sympathy of sentiments of which few governments have furnished examples: but without which every government degenerates into tyranny. If it be asked, what is to restrain the House of Representatives from making legal discriminations in favor of themselves and a particular class of the society? I answer: the genius of the whole system; the nature of just and constitutional laws; and, above all, the vigilant and manly spirit which actuates the people of America—a spirit which nourishes freedom, and in return is nourished by it.

If this spirit shall ever be so far debased as to tolerate a law not obligatory on the legislature, as well as on the people, the people will be prepared to tolerate anything but liberty. [Emphasis supplied.]

Precisely why, as a matter of constitutional law, can Congress “make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society”? Because part of “the genius of the whole system” and “the nature of just and constitutional laws” require equality in all legislation that is capable of equal application. The Preamble sets as one of the Constitution’s goals “to * * * promote the general Welfare”—which, because every power of Congress must be interpreted and applied in conformity with the Preamble, entails that no law that can be written so as to reach Americans in general can be tricked out with “legal discriminations in favor of [Members of Congress] and [any other] particular class of the society”. The Constitution deems the ruling criterion of “the general Welfare” so important that it repeats that requirement in Article I, Section 8, Clause 1, which delegates to Congress the “Power to lay and collect Taxes * * * to pay the Debts and provide for the * * * general Welfare of the United States”. So, any legislation which involves taxation, spending, or both must be equally applicable to all similarly situated Americans.

Now, as is self-evident, a scheme for “national health care”—involving taxation, spending, or both—can be written so as to apply to everyone, on precisely equal terms, designed to provide precisely equal benefits for and to impose precisely equal burdens upon Members of Congress, the President, and public officials and employees of the General Government, as well as “Joe Doaks”, “Ma and Pa Kettle”, and every other ordinary American. Yet the national health-care bills before Congress do not provide for universal and equal benefits for and burdens upon all Americans. No, indeed. Members of Congress—“and their friends”, as Madison so delicately put it—are excluded from these bills, and allowed to retain for themselves especially favorable health-care coverage unavailable at any price to average citizens.

On the face of it, then, the present national-health care bills, being (in Madison’s formulation) “[proposed] laws not obligatory on the legislature, as well as on the people”, are the products and the making of nothing less than tyranny. As the English political philosopher John Locke defined it,

Tyranny is the exercise of Power beyond Right, which no Body can have a Right to. And this is making use of the Power any one has in his hands; not for the good of those, who are under it, but for his own private separate Advantage.

’Tis a Mistake to think this Fault is proper only to Monarchies; other Forms of Government are liable to it, as well as that. For where-ever the Power that is put in any hands for the Government of the People, and the Preservation of their Properties, is applied to other ends, and made use of to impoverish, harass, or subdue them to the Arbitrary and Irregular Commands of those that have it: There is presently becomes Tyranny, whether those that thus use it are one or many. An Essay Concerning the True Original, Extent, and End of Civil Government (London, England: Awnsham Churchill, 1690), §§ 199 and 201.

Even earlier, the eminent theologian and jurist Francisco de Vitoria—from the University of Salamanca in Spain—had held to the same definition: “Herein, indeed, is the difference between a lawful king and a tyrant, that the latter directs his government towards his individual profit and advantage, but a king to the public welfare[.]” De Iure Belli (1557), quoted in James Brown Scott, The Catholic Conception of International Law (Clark, New Jersey: The Lawbook Exchange, Ltd., 2008), at 38.

So, confronted with this crescent tyranny, what should Americans do? The first step must be to revive “the vigilant and manly spirit which [in the past] actuate[d] the people of America—a spirit which nourishes freedom, and in return is nourished by it”. With that spirit rekindled, anything is possible.

© 2010 Edwin Vieira, Jr. – All Rights Reserved. This article originally appeared April 13, 2010 on

Dr. Edwin Vieira, Jr., P.h.D., J.D. —Biography, Books and Lectures.

Edwin Vieira, Jr., holds four degrees from Harvard: A.B. (Harvard College), A.M. and Ph.D. (Harvard Graduate School of Arts and Sciences), and J.D. (Harvard Law School).

For more than thirty years he has practiced law, with emphasis on constitutional issues. In the Supreme Court of the United States he successfully argued or briefed the cases leading to the landmark decisions Abood v. Detroit Board of Education, Chicago Teachers Union v. Hudson, and Communications Workers of America v. Beck, which established constitutional and statutory limitations on the uses to which labor unions, in both the private and the public sectors, may apply fees extracted from nonunion workers as a condition of their employment.

Dr. Vieira has written numerous monographs and articles in scholarly journals, and lectured throughout the county. Dr. Vieira is the author of the following books:

Pieces of Eight: The Monetary Powers and Disabilities of the United States Constitution (II Volumes)
The most comprehensive study in existence of American monetary law and history viewed from a constitutional perspective. Available on Amazon.

How to Dethrone the Imperial Judiciary
In this brilliant, accessible, and documented work, Dr. Edwin Vieira offers us the best researched and clearest over view to date of the power of the people to control a runaway judiciary. Available on Amazon.

Constitutional “Homeland Security”, Volume One, The Nation in Arms
This book explains why “the Militia of the several States” are the only establishments the Constitution explicitly empowers to provide the crucial elements of “homeland security”. And it describes the practical steps Americans should take to revitalize the constitutional Militia in each of the States. Available on Amazon.

Constitutional “Homeland Security” Volume Two, The Sword and Sovereignty: Constitutional Principles of “the Militia of the several States”
A comprehensive CD-ROM study—2,304 pages in length, with 6,544 footnotes and endnotes—of the constitutional and statutory history of America’s Militia, which gives special emphasis to the unique and indispensable rôle of the Militia as the institutions through which WE THE PEOPLE themselves ultimately provide, or withhold, the consent of the governed upon which this country’s form of government depends for its legitimacy. The Sword and Sovereignty derives the basic legal and practical principles of the Militia from a detailed study of the pre-constitutional Militia statutes of Rhode Island and Virginia selected, for reasons the book makes clear, as exemplars of what happened throughout America in that era. It explains how these principles are embodied in the Declaration of Independence and the Constitution, and how they should be applied in the operation of America’s true federal system of government—indeed, why it is Congress’s and every State’s duty to see to the organization of, and every American’s personal duty to participate in, the Militia, more imperatively now than ever before. It exposes the dangerous fallacy in the contemporary “individual-right” misinterpretation of the Second Amendment, and explains how the Supreme Court’s Heller decision reduced American’s right * * * to keep and bear Arms to a level far below what their forebears enjoyed when the Constitution and Bill of Rights were ratified. And it examines ways in which revitalized Militia of the several States could, should, and if they were properly revitalized would deal with many of the most pressing contemporary problems this country faces—such as the correction of rogue public officials, the supervision of the military-industrial complex, the conduct of honest elections, the provision of an alternative currency, etc. Available on Amazon.

Thirteen Words
Dr. Edwin Vieira, Jr. examines the phrase in the Constitution of the United States that is most overlooked today, even though it is also the most important constitutional phrase of all for Americans to understand and apply if they are to preserve their country as an independent, free, and prosperous republic, “A well regulated Militia being necessary to the security of a free State”. Available on Amazon.

Three Rights
Dr. Edwin Vieira, Jr. elucidates the three indispensable rights of popular sovereignty, popular self-government, and popular resistance to usurpation and tyranny that lie at the heart of the Declaration of Independence, the original Constitution of the United States, and the Bill of Rights. Three Rightsproves that these documents are not somehow separate and independent, but instead are integral components of a single coherent plan of government the foundational precepts of which call upon We the People to retain in their own hands, and to wield directly when circumstances demand it, the ultimate power of sovereignty in the defense of “a free State”. Available on Amazon.

By Tyranny Out of Necessity: The Bastardy of Martial Law
All to many Americans today accept the notion they, should a “national emergency’ occur, only “martial law” could maintain “law and order” and secure the continuation of vital public services, and therefore “martial law” is not only desirable but inevitable in an era so fraught with “terrorism” and other dangers against which ordinary citizens are hopelessly unprepared to defend themselves. Available on Amazon.

The Purse and the Sword: Imminent Dangers of U.S. Economic and Homeland Security Policies
Lecture presentation featuring Dr. Edwin Vieira., Jr. speaking. A four disc set, 8 hours in length. Dr. Edwin Vieira, Jr. uses his “Visual Constitution” to address two of the most pressing issues in our nation:

• The Purse: America’s Economic Crisis…what can and should the government do? Few Americans understand our economic system and its complexities. Hear Dr. Vieira explain, in easy to understand language, the lawful Constitutional powers the government possesses for dealing with money and the economy. Hear the common sense application of those powers, the abuses and unlawful expansions of those powers, as well as the only logical way through which we can return sanity to our economic policies.

• The Sword: “Homeland Security”…how the Militia provides our only true security. Today an unending series of “crisis” are being used to rationalize the continual loss of liberty and expansion of government in size and scope. After years of research, Dr. Vieira presents the lawful and Constitutional remedies for threats to our “homeland security”. Hear how “the Militia of the several States” are the ultimate security against all threats—both foreign and domestic. Learn what you can do to help with “homeland security” in your community and State! Available on Amazon.

Cra$hmaker: A Federal Affair: A Novel
A not-so-fictional story of an engineered crash of the Federal Reserve System, and the political upheaval it causes. Available on Amazon.