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Thread: Examiner.com: Obamacare attacked as unconstitutional invasion of privacy

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    Please CLICK, DIGG, & REDITT this news column.

    http://www.reddit.com/tb/8y6yx


    In my last column, "Under Obamacare, where will Canadians go for medical services?," I highlighted Gun Owners of America's (GOA's) opposition on privacy grounds to President Obama's obsession with nationalizing of health services in America. Noting that mainstream privacy experts are also alarmed at the Obama administration's "damn the torpedoes" attitude to impose statist policy mandates at whatever the cost to privacy, I called for an unholy alliance of gun owners and privacy advocates to take action to stop Obamacare now before it becomes a social and economic entanglement that would literally sink America as a great power and eliminate significant chunks of Americans' remaining privacy and freedom.

    And now some constitutional scholars agree.

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    Hm. So is Medicare unconstitutional?



    Not that I support Obamacare. The whole "get it or get fined" thing is pretty screwed up.

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    I looked in my Constitutional concordance and not find "Medicare" or "medicine" even.

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    Doug Huffman wrote:
    I looked in my Constitutional concordance and not find "Medicare" or "medicine" even.
    While I'm not going to agree or disagree with the proposed plan, I would say that the Constitution states:

    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.
    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.

    If it is decided that Justice, domestic Tranquility, and the general Welfare require such a plan, I could see that being used as a constitutional basis.

    "If we were to ever consider citizenship as the least bit matter of merit instead of birthright, imagine who should be selected as deserved representation of our democracy: someone who would risk their daily livelihood to cast an individually statistically insignificant vote, or those who wrap themselves in the flag against slightest slights." - agenthex

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    Tawnos wrote:
    Doug Huffman wrote:
    I looked in my Constitutional concordance and not find "Medicare" or "medicine" even.
    While I'm not going to agree or disagree with the proposed plan, I would say that the Constitution states:

    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.
    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.

    If it is decided that Justice, domestic Tranquility, and the general Welfare require such a plan, I could see that being used as a constitutional basis.
    It has been decided that Justice, Domestic Tranquility, and general Welfare require confiscation of all firearms. Turn yours in immediately.

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    NightOwl wrote:
    Hm. So is Medicare unconstitutional?
    There actually is a challenge in court right now about mandatory participation in medicare as a condition of receiving social security benifits - not sure if it raises the privacy angle or not.

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    Tomahawk wrote:
    Tawnos wrote:
    Doug Huffman wrote:
    I looked in my Constitutional concordance and not find "Medicare" or "medicine" even.
    While I'm not going to agree or disagree with the proposed plan, I would say that the Constitution states:

    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.
    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.

    If it is decided that Justice, domestic Tranquility, and the general Welfare require such a plan, I could see that being used as a constitutional basis.
    It has been decided that Justice, Domestic Tranquility, and general Welfare require confiscation of all firearms. Turn yours in immediately.
    Nice try. That would not fall under "and proper" as it would violate the second amendment. I am saying that nothing in the constitution explicitly prohibits the establishment of such a plan. Nothing specifically authorizes it, either, but it could easily be seen as constitutional.
    "If we were to ever consider citizenship as the least bit matter of merit instead of birthright, imagine who should be selected as deserved representation of our democracy: someone who would risk their daily livelihood to cast an individually statistically insignificant vote, or those who wrap themselves in the flag against slightest slights." - agenthex

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    Very well written piece.

    By the time I got to the end, I was compelled to "do it now".
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Tawnos wrote:
    Nothing specifically authorizes it, either, but it could easily be seen as constitutional.
    Which must the Constitution of the United States do to be effective, explicitly deny or explicitly allow arrogation of powers from the people?

    Would you argue that the Founding Fathers must explicitly allow such as the death penalty, that they likely never considered, or psychoactive drugs, or abortion? Contrarywise, must they have been explicitly prohibited to be denied to future generations?

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    Tawnos wrote:
    Tomahawk wrote:
    Tawnos wrote:
    Doug Huffman wrote:
    I looked in my Constitutional concordance and not find "Medicare" or "medicine" even.
    While I'm not going to agree or disagree with the proposed plan, I would say that the Constitution states:

    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.
    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.

    If it is decided that Justice, domestic Tranquility, and the general Welfare require such a plan, I could see that being used as a constitutional basis.
    It has been decided that Justice, Domestic Tranquility, and general Welfare require confiscation of all firearms. Turn yours in immediately.
    Nice try. That would not fall under "and proper" as it would violate the second amendment. I am saying that nothing in the constitution explicitly prohibits the establishment of such a plan. Nothing specifically authorizes it, either, but it could easily be seen as constitutional.
    Nothing in the Constitution gives the government the authority to take my money and force me to pay for your health care.

    What you're doing is called stretching. Judges and politicians do it often, so I guess you're on to something. You've shown that a piece of paper can't protect your rights and liberties.

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    Regular Member sudden valley gunner's Avatar
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    Good article Mike.

    I don't have health care and I don't feel like its a looming crisis. I have a hard time keeping up financially because of the numerous federal and state taxes enforced upon me. I loose my house if I don't pay state property or federal IRS taxes wich amount to more than 50% of my income already. And during this economic slow down more than that.

    And now I will be mandated to buy another thing I can't afford? And it gives up my private info with it!!!!!! I unfortunately got to see the LEO's computer from the backseat the other day and guess what? They have all the guns you ever purchased and their serial numbers stored right there!!!! (an arrest I feel was unlawful but have no money for a lawyer, was open carrying but not gun related, I had no idea my license was suspended and I wasn't in my car at the time of arrest)

    I am so tired of these theories our governments propose that we pay for and the "educated elitist" who buy into them. These folks are not grounded in reality. If it doesn't work on a small scale it won't work nationally.

    So I took your advice Mike and followed the link and wrote my first thing ever to my politicians.
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

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    Tomahawk wrote:
    Nothing in the Constitution gives the government the authority to take my money and force me to pay for your health care.

    What you're doing is called stretching. Judges and politicians do it often, so I guess you're on to something. You've shown that a piece of paper can't protect your rights and liberties.
    Hope you're using the general "you", as, numerically speaking, there's no way you'd be helping to pay for my health care .

    However, under Article 1, Section 7 of the Constitution, it's stated "All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills." Amendment 16 clarifies this to allow income taxation, though it was already implied. Moreover, Article 1, Section 8 states that one of the powers of Congress is "To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States."

    Again, I'm not saying that I agree or disagree with this as a good policy, but the Constitutional argument related to Congress providing commonly-payed for medicine is not the right course by which to attack it, as there is nothing prohibiting the creation of such, and in more than one way it falls within the territory of what is explicitly allowed.

    If a Constitutional attack is desired, Mike provides a decent weakness. Specifically, if the care is not structured such that sealed, confidential medical information is off limits when determining NICS eligibility, there is a clear privacy violation under the fourth amendment. However, saying that the Constitution doesn't mention "medicine" is both asinine and nonproductive if you wish to stand up, legalistically, against the proposed plan.

    "If we were to ever consider citizenship as the least bit matter of merit instead of birthright, imagine who should be selected as deserved representation of our democracy: someone who would risk their daily livelihood to cast an individually statistically insignificant vote, or those who wrap themselves in the flag against slightest slights." - agenthex

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    Tawnos wrote:
    Tomahawk wrote:
    Nothing in the Constitution gives the government the authority to take my money and force me to pay for your health care.

    What you're doing is called stretching. Judges and politicians do it often, so I guess you're on to something. You've shown that a piece of paper can't protect your rights and liberties.
    However, under Article 1, Section 7 of the Constitution, it's stated "All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills." Amendment 16 clarifies this to allow income taxation, though it was already implied. Moreover, Article 1, Section 8 states that one of the powers of Congress is "To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States."
    Ummm from a layman "witless" person even I can see they are talking about the general welfare of the U.S. as a government. Not the financial or well being (including health care)of its citizens.


    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

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    Tawnos wrote:
    I am saying that nothing in the constitution explicitly prohibits the establishment of such a plan. Nothing specifically authorizes it, either, but it could easily be seen as constitutional.
    Anything not specifically authorized by the Constitution is unconstitutional.

    cf. Amendments 9 & 10.


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    KBCraig wrote:
    Tawnos wrote:
    I am saying that nothing in the constitution explicitly prohibits the establishment of such a plan. Nothing specifically authorizes it, either, but it could easily be seen as constitutional.
    Anything not specifically authorized by the Constitution is unconstitutional.

    cf. Amendments 9 & 10.
    9:
    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
    aka: Just because the Constitution enumerates certain rights, does not mean all other rights are forfeit.

    10:
    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.
    Those things not stated within the Constitution to be federally controlled (delegated to the US federal government, or deemed out of the control of the states), are to be decided on a state by state basis. If no law prevents that in any state, then it's to be decided on a person-by-person basis.
    As stated previously, I think the case could easily be made (SVG, this addresses your point as well) that "providing for the general welfare" falls under the guidelines of the Constitution. The fact it's mentioned both in the preamble and then, later, a similar clause is invoked in the power of legislature leads me away from the "laws to secure the welfare of the US as a government" viewpoint. In fact, it would stand against a few of our oft-quoted statements regarding liberty, the blood of patriots, and all that. Once the government ceases to serve its people and serves only itself, it is acting to secure its own welfare, not that of the people, hence why I cannot buy that as the reasonable interpretation.
    Again, I don't state this to support or oppose the actual plan, simply that line of argument against it (well, the constitution mentions no medicine, so medicine cannot be regulated).

    "If we were to ever consider citizenship as the least bit matter of merit instead of birthright, imagine who should be selected as deserved representation of our democracy: someone who would risk their daily livelihood to cast an individually statistically insignificant vote, or those who wrap themselves in the flag against slightest slights." - agenthex

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    I think you missed my point, but than made it. Our founding fathers whole idea of a government was a very very limited one. We are not a democracy we are a republic. Democracy=Mob rule. So when they are talking about the general welfare of the United States, they are talking about the government but still in what would be in the best interest of the people.A large government ran healthcare system people are forced to pay into is very much unconstitutional.

    The problem is since early in the last century, progressives have tried to socialize, U.S.and to "interpret" the constitutionand our declaration of independance differently.
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

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    sudden valley gunner wrote:
    I think you missed my point, but than made it. Our founding fathers whole idea of a government was a very very limited one. We are not a democracy we are a republic. Democracy=Mob rule. So when they are talking about the general welfare of the United States, they are talking about the government but still in what would be in the best interest of the people.A large government ran healthcare system people are forced to pay into is very much unconstitutional.

    The problem is since early in the last century, progressives have tried to socialize, U.S.and to "interpret" the constitutionand our declaration of independance differently.
    Regarding the bolded text above: As a republic, we send forth a representative that meet with other representatives to determine which laws best serve the needs of us, the representative's constituents. Other people do the same, hence, republic. This is tangential to the constitutionality question, a red herring, something brought up under the guise of being related to the constitutionality, but having no relevance to the topic at hand. Instead of following the rabbit trail, I will address why the Constitution allows for such a health care plan.

    The group of representatives making up the legislature votes on laws to govern the people. The guidelines for what the federal representatives may do are stated to be anything specifically enumerated to the federal government, anything not specifically stated to be restricted from being legislated by the states, and anything else necessary and proper for carrying into execution powers vested by the Constitution in the government of the United States. As previously stated, the Preamble of the Constitution states that one purpose of the Constitution, of a federal government, in fact, was to provide for the general welfare. The federalist papers state the reason for a federal government's need to provide for (...) the general welfare was that it could tax and draw from a greater pool than the states could produce, individually.

    Hence, if the majority of representatives representing the majority of the people decided it necessary to provide for the general welfare through the establishment of a centralized medical services provision, I cannot find the prima facie unconstitutionality being proposed. Only when such is put forth in a manner that it tramples upon other rights does it become problematic. To wit, providing for the general welfare cannot be used as a means by which to deny privacy or other rights guaranteed under the Constitution. This fear is exemplified and dismissed in the 41st Federalist Paper (emphasis mine):
    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.

    ...
    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!
    Hamilton noted that one danger of a general term was that some might construe it to be used as a means to quash other rights. Tomahawk tried that same line of reasoning used by Hamilton's objectors, stating "the general welfare demands the loss of your rights." Both miss that such a plan must pass muster in Congress, and that the Constitution places other limitations and examples of the general form under which any plan must fall.

    I contend, simply, that a plan that draws upon the public treasury to provide medical services for the people, voted by those people's representatives, falls within Constitutional guidelines. In order to attack this plan and win, you must choose a course that does not attack prima facie (on the face) Constitutionality of the plan, but instead consider the implications upon the rights of the people to be secure in their persons, to keep and bear arms, to bear no witness against themselves, et cetera. Otherwise, choose a method of attack that addresses the efficacy of such a plan: poor service, mismanagement, et cetera. Show the plan to be a bad idea, as I don't think, if properly written, it will be an illegal one.
    "If we were to ever consider citizenship as the least bit matter of merit instead of birthright, imagine who should be selected as deserved representation of our democracy: someone who would risk their daily livelihood to cast an individually statistically insignificant vote, or those who wrap themselves in the flag against slightest slights." - agenthex

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    Tawnos wrote:
    As stated previously, I think the case could easily be made (SVG, this addresses your point as well) that "providing for the general welfare" falls under the guidelines of the Constitution.
    Article 1, Section 8, which contains the "welfare clause", is terribly misunderstood. It has no more to do with "Welfare" than the phrase "well regulated militia" has to do with rules and regulations.

    The complete phrase is, "general welfare of the united States". Of the states, not the People.



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    Regular Member sudden valley gunner's Avatar
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    See my point about educated elitist.
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

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    KBCraig wrote:
    Tawnos wrote:
    As stated previously, I think the case could easily be made (SVG, this addresses your point as well) that "providing for the general welfare" falls under the guidelines of the Constitution.
    Article 1, Section 8, which contains the "welfare clause", is terribly misunderstood. It has no more to do with "Welfare" than the phrase "well regulated militia" has to do with rules and regulations.

    The complete phrase is, "general welfare of the united States". Of the states, not the People.

    If the general welfare of the United States requires that the people within it are healthy and capable of producing, would that not be providing for the general welfare of the United States? It's different than the phrase which you quote, as in the "well regulated militia" case, it's a subordinate clause, reliant on another to make a point. Arguably, "of the United States" is the collective right to general welfare many sought to misapply to the second amendment.

    SVG, care to expound upon the "educated elitist" smear you apply? To tip my cards, I'm not in favor of a socially mandated health care program, but I see "educated elitist" thrown around like being educated, or being on the upper end of the curve is a bad thing. Last I checked, Jefferson, Hamilton, and the rest of the founding fathers and their contributors were all "educated elitists." It makes no sense to use that as an insult, as to do so would be to insult those who founded our country.
    "If we were to ever consider citizenship as the least bit matter of merit instead of birthright, imagine who should be selected as deserved representation of our democracy: someone who would risk their daily livelihood to cast an individually statistically insignificant vote, or those who wrap themselves in the flag against slightest slights." - agenthex

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    Regular Member sudden valley gunner's Avatar
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    I stated my opinion, I don't want to hijack this thread.

    I was talking to folks about this and the funny thing is a lot of people like myself were surprised with the connection of invasion of personal information and how it might affect our gun rights.

    I was thinking so does Obama's plan of streamlining the medical system and having it all online. Did he maybe have this already in mind or is this just an interesting side effect of his plan? Things that make you go hmmmmmmmmmmm.
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

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    I consider Medicare and any gov't program designed to help a specific group of people to be unconstitutional (which is most programs, I believe). When you target a particular class of people, by definition you are acting in opposition to the 'general' welfare; that is, that all people benefit.

    FBI agents are called 'special agents' not because they are special but due to their not having 'general' powers; their powers are 'specific'.

    To me, for Obamacare to be at least considered to be constitutional (albeit the 9th and 10th amendment arguments rule here), every citizen would be covered by the exact same policy, including all gov't employees.

    Carry on

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    Regular Member Flintlock's Avatar
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    Tawnos wrote:
    promote the general Welfare
    Promote does not mean provide.

    Welfare - from dictionary.com

    The good fortune, health, happiness, prosperity, etc., of a person, group, or organization; well-being: to look after a child's welfare; the physical or moral welfare of society.


    Peace through superior firepower

    Luke 11:21
    "When a strong man, fully armed, guards his own house, his possessions are undisturbed.

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    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.
    promote the general Welfare, Does not mean FUND, FINANCE, PAY FOR, GIVE AWAY, OR STEAL FROM PRODUCTIVE PEOPLE.

    The founderspromoted the general Welfare, by putting strict limits on the governments ability to steal from us. Limits which have been broken. Government can promote the general Welfare, BY GETTING THE HELL OUT OF OUR BUSINESS, and allowing oxygen thieves to either work or starve to death. Nothing PROMOTES THE WELFARE of people better than being motivated too succeed, and uninhibited by bureaucracies that serve no purpose besides providing authority to imbeciles who would starve to death if forced to actually work for a living.

    Leftists haveactually reversed evolution. I don't know if western civilization can survive much more. Look what they did to Russia...
    If you ladies leave my island, if you survive recruit training. You will become a minister of death, PRAYING FOR WAR...

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