The Constitutional Rights and Responsibilities of members of Congress

   I recently received a voice message where Congressman Peter Welch respectfully responded to my emails pointing out many constitutional scholars who make their case that the healthcare bills as passed the U.S. House or Senate expands the role of the federal government beyond the limits prescribed by the Constitution. 

    While I appreciate being personally contacting on this matter, three reasons compel me to respond personally as well as in a more public manner such as this.  First, Congress appears determined to – at almost any cost – push through Congress a bill that is neither constitutionally legal nor supported by a majority of Americans.  Second, Rep. Welch’s own deep commitment to getting such a bill passed.  Last, but surely not least, are the sweeping long-term consequences his rationale would have on our very form of government.

    Please take a few minutes to read the letter below and then consider respectfully expressing your thoughts to Rep. Welch at

An Open Letter to Representative Peter Welch

Representative Peter Welch
United State Congress 

February 26, 2010 

Dear Rep. Welch: 

    Thank you for your recent voice message where you respectfully identified a source for why our views greatly differ on the role of the federal government in healthcare.  In particular, you contend that the Court is “ultimately responsible” to ensure that a policy is constitutional.  Such a view allows Congress to have a lesser degree of responsibility to uphold the Constitution than the Court and in fact makes Congress inferior to the Court.  While Americans have little confidence in Congress, I think it is both wrong and unwise for Congress to take a back seat to the Court.  I contend that many of our present day problems stem from this weakening of the legislative branch of government. 

    Ensuring policy is presumptively constitutional, prior to implementation, is a primary responsibility of every member of Congress, the President, and the courts.  You each took an oath to responsibly understand and abide by the intent of the Constitution. This pledge requires studying the writings of the framers to understand exactly what was intended by the specific words and phrases they chose to dictate the constitutional consequences of their deliberations.  Words and phrases may change in perceived meaning over time which, if taken face-value at any given moment, may allow for altered application of the Constitution if not checked against their original context.  

    From those historical writings (see some below) I, and a growing number of Americans, see no way to construe the Constitution as giving the federal government the power to control healthcare and mandate all Americans purchase a federally prescribed health insurance policy. 

    If any of the three branches of government should have more governance capability than the others, it must be the Legislative - by its constitutional design being the closest to the people and having the power to make laws that regulate both the executive and judicial branches as well as having the power to remove , under prescribed circumstances, the “President, Vice President and all civil officers of the United States” from office (Article II, section 4) as well as the power to create and abolish entire circuit courts.  However, despite that power, the legislative branch remains neither above the law nor the Constitution.  Congress can only change law by lawful means.  Thus, if Congress desires to pass a bill along the lines of the massive Senate or House healthcare bills, its appropriate genesis would be the introduction of an amendment to the Constitution framing that desired outcome. 

    Not only as a member of Congress is it your foremost duty to uphold and defend the Constitution and to search out the original intent of the words penned by our nation’s framers, but by your very profession as a lawyer you are bound and guided by the law and the constitution.  Indeed your interest in understanding the original intent of the Constitution should be no less than your desire as a lawyer to fully understand the background and original intent of any law that might impact your client. 

    This is a matter far larger than this single healthcare bill.  The very form of our government, with appropriate checks and balances and citizen input, is at stake.  Your viewpoint ultimately puts five people – a majority of the Supreme Court – as the ultimate deciders of the direction of our country.  That perspective is far removed from how, and why, this nation was founded.  It also undermines the rightful responsibility of the body in which you are presently serving, and in doing so, undermines the people’s ability to guide our government. By your, and many of your colleagues’ inattention to the constitutional framing of our federal government, no longer is our government “…of the people, by the people, and for the people…” as Congress inches America closer and closer toward tyranny. 


Mark Shepard
Bennington, Vermont
Vermont State
Senator, 2003-2006 


A look at the source documents 

Both Congressman Welch and Senator Leahy have cited to me that Article 1, Section 8 of the Constitution is what gives them the authority to enact the laws the each voted for.  Below are some quotes from James Madison (widely considered the father of the Constitution) and Thomas Jefferson on the general welfare clause and the commerce clause as well as the tenth amendment.

(Note: The sections below were highlighted to help identify key texts related to the general welfare clause, commerce clause and the Bill of Rights/Tenth Amendment.)

Article 1, Section 8 of the U.S. Constitution:

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;

To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;

To provide for the punishment of counterfeiting the securities and current coin of the United States;

To establish post offices and post roads;

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

To constitute tribunals inferior to the Supreme Court;

To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;--And

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.


A look at the term “general welfare” 

Changes in the meaning of the term general welfare: 

      Definition of general welfare from the 1828 Webster’s Dictionary:

Exemption from any unusual evil or calamity; the enjoyment of peace and prosperity, or the ordinary blessings of society and civil government.

      Definition of general welfare as currently used:

Aid in the form of money or necessities for those in need; an agency or program through which such aid is distributed.

Writings of founders:

James Madison, writing on the meaning of general welfare in Article 1, Section 8, makes clear (see below) that the term general welfare can only apply to those things itemized under the general welfare phrase, which are in the same sentence.  As Madison said below, "their stooping to such a misconstruction" is proof of how hard someone might work to twist the meaning of this sentence to suit their desires.  Does not Madison's term "stooping to such a misconstruction" fit our present members of Congress who misuse the term general welfare by applying it to things beyond what was clearly and specifically listed with that phase by Madison and the other framers?


Excerpt from Federalist Paper No. 41, written by James Madison, January 19, 1788 

Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States," amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.

Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms "to raise money for the general welfare.

"But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.

The objection here is the more extraordinary, as it appears that the language used by the convention is a copy from the articles of Confederation. The objects of the Union among the States, as described in article third, are "their common defense, security of their liberties, and mutual and general welfare. " The terms of article eighth are still more identical: "All charges of war and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress, shall be defrayed out of a common treasury," etc. A similar language again occurs in article ninth. Construe either of these articles by the rules which would justify the construction put on the new Constitution, and they vest in the existing Congress a power to legislate in all cases whatsoever. But what would have been thought of that assembly, if, attaching themselves to these general expressions, and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defense and general welfare? I appeal to the objectors themselves, whether they would in that case have employed the same reasoning in justification of Congress as they now make use of against the convention. How difficult it is for error to escape its own condemnation!

      Other Madison writings on the term general welfare as used in Article 1, Section 8: 

“If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions.” (James Madison, Letter to Edmund Pendleton, January 21, 1792 Madison 1865, I, page 546) 

"With respect to the two words 'general welfare,' I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators." --James Madison, Letter to James Robertson, April 20, 1831

      Thomas Jefferson on the term general welfare as used in Article 1, Section 8: 

"Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated." - Thomas Jefferson

  A look at the term Commerce Clause

 As stated by Madison below, the purpose of the Commerce clause, with regard to interstate commerce was to prevent a state from imposing import and export fees on products that passed through that state.  There is no mention of the federal government regulating any product or service that crosses a state line.


Excerpt from Federalist Paper No. 42, written by James Madison, January 22, 1788

The powers included in the THIRD class are those which provide for the harmony and proper intercourse among the States.

A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquillity.


A look at the Bill of Rights

 From the preamble to the Bill of Rights, we read:

THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution

RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as Amendments to the Constitution of the United States, all or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.:

ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

Clearly the Americans of the late 18th century were well that there would be attempts misconstrue the Constitution and thus they demanded the inclusion of ten amendments called the Bill of Rights, with the Tenth Amendment being an amendment clearly restricting the role of the federal government to only those things specifically enumerated in the Constitution.  Recent decades have shown the wisdom of that amendment as we have seen failure after failure and a compounding load of dept when the federal government steps into areas not among those specifically enumerated.

Amendment X - Rights Reserved to States (1791)

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.

      Representative James Madison, 1794:

House of Representatives, January 10, 1794.  Mr. Madison remarked, that the government of the United States is a definite government, confined to specified objects. It is not like the state governments whose powers are more general. …”


Back to the original question 

The above information and analysis is why I have challenged the constitutionality of the healthcare legislation which has now passed the U.S. Senate and House of Representatives with the support of both of our U.S. Senators and Congressman Welch.

To date, the responses have been: first ignore the question, then when I continued to press for an answer Article 1, Section 8 of the Constitution was sighted, yet with no real explanation, and then the latest response of dumping the responsibility to uphold the constitution off to the Court.

This just is not at all acceptable! All Vermonters deserve a straight forward rigorously thought out answer to this most reasonable and fundamental question.

Congressman and Senators: I am not simply asking your opinion on the constitutionality of the bills you voted for, nor will I accept your notion that determining constitutionality is any less your job than it is the job of the Court.  I am asking you to show me and the rest of Vermont how in light of what the founders wrote (above) do you contend that the bills you voted are within the bounds of our nation's Constitution?


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