constitutional rights

  • September 10, 2015
    Guest Post

    by James C. Nelson, Justice, Montana Supreme Court (Retired)

    The swings in public perception are amazing. Case in point: Kim Davis, the Kentucky Clerk who thumbed her official nose at the U.S. Supreme Court’s decision that marriage is a fundamental right of all persons, not just heterosexuals. Not on Davis’ watch, that is.

    No marriage licenses to gay and lesbian couples would be issued over her official title, because to do so would violate her personal religious beliefs. That, apparently, is the belief that the Bible and the “loving” God who inspired it and who created all people in his own image, condemns marriages which are not between one man and one woman.

    Davis can believe what she wants, but the fact is that in Kentucky, as is the case elsewhere, public officials like her swear an oath (which my recollection is a promise to God) to support and uphold the Constitution. That is the same Constitution that the U.S. Supreme Court has decreed guarantees equal protection of the marriage laws to all people.

  • October 23, 2009
    The claims pushed by opponents of health care reform that constitutional rights would be shredded if individuals are required to obtain health insurance are beyond wobbly says constitutional law expert and professor Erwin Chemerinsky. "There is much to argue about in the debate over health care reform, but constitutionality is not among the hard questions to consider," writes Chemerinsky in a column for Politico.

    Chemerinsky, dean and professor of law at the University of California, Irvine School of Law, rebuts claims that Congress' health care reform proposals that include a mandate for people to buy health insurance are constitutionally suspect.

    Congress, Chemerinsky maintains, has constitutional authority, such as its powers to regulate commerce and to tax and spend that allow it to require people to buy health insurance. 

    Chemerinsky writes:

    Under an unbroken line of precedents stretching back 70 years, Congress has the power to regulate activities that, taken cumulatively, have a substantial effect on interstate commerce. People not purchasing health insurance unquestionably has this effect.

    There is a substantial likelihood that everyone will need medical care at some point. A person with a communicable disease will be treated whether or not he or she is insured. A person in an automobile accident will be rushed to the hospital for treatment, whether or not he or she insured. Congress would simply be requiring everyone to be insured to cover their potential costs to the system.

    Regarding Congress' constitutional power to tax and spend Chemerinksy notes:

    Congress can require the purchase of health insurance and then tax those who do not do so in order to pay their costs to the system. This is similar to Social Security taxes, which everyone pays to cover the costs of the Social Security system. Since the 1930s, the Supreme Court has accorded Congress broad powers to tax and spend for the general welfare and has left it to Congress to determine this.

    Chemerinsky's entire article is available here. The professor also addressed the constitutionality of health care reform in an earlier column for the Los Angeles Times.