That’s why it matters when a good man like Fred Grandy launches into a shtick that includes this: “Oh, the Founders, they thought black people were just three-fifths of a person.” Maybe Fred was joking. Maybe he was pulling everyone’s leg. But it didn’t sound like it.

Political theorists can get pretty heavy duty. Which is why morning drive time includes very few of them as talk show hosts. Bill Bennett is one of the few who can pull it off successfully. But political theorists talk about “ideological hegemony.” That means you get the other guy–your opponent–to think in categories that you’ve determined in advance. Another phrase would be “setting the terms of the debate.”

If even conservatives seriously think that the Founders were so racist as to deny the full humanity of black people, then, “Houston, we’ve got a problem.” Grandy’s “three-fifths” crack echoes Al Gore’s infamous rants during the 2000 campaign. Gore demagogically whipped up crowds in Pennsylvania saying that those who favored “original intent” in constitutional interpretation wanted to deprive black people of their civil rights. They thought you were only three-fifths of a person, Gore suggested.

The Founders thought no such thing. The much-misunderstood Three-Fifths Compromise was just that, a compromise. Northern, anti-slavery delegates to the Constitutional Convention would have preferred not to count slaves at all for purposes of representation in Congress. This would have penalized slaveholding states and given them lesser influence in the House of Representatives. Just as important, it would have penalized them in the Electoral College that chooses our Presidents. Delegates from slaveholding states would have preferred to count slaves fully for purposes of representation, but they didn’t want to be taxed fully for slaves.

So the Founders compromised. It’s important to point out that such a compromise also existed in the Articles of Confederation, prior to the Constitution, when all taxation was by state.

A little-noted feature of the Three-Fifths Compromise is that it gave a reward–an electoral bump, if you will–to all states that emancipated their slaves. Free the black people of your state, and you get to count them fully for Congress. Then, American you can increase your numbers in the House and in the Electoral College.

Seven of the original Thirteen States got that reward. Tragically, six of the original thirteen failed to free their slaves. And other slaveholding states were later admitted to the Union.

The Founders were anti-slavery. They took pains never to use the words “slave,” “Negro,” “African,” etc, in the great charter of freedom they gave us.

Abraham Lincoln’s Midwest common sense exceeded even that of Fred Grandy. Lincoln said the Founders hid away in the Constitution the fact that we had slavery, just as a man who has a tumor or wen or other defect tries to hide it from view. Frederick Douglass hailed the Founders’ Constitution and said not of word of it would have to be changed if the states would only agree to free their slaves. They were both right.

Why does any of this matter today? Because President Barack Obama is using the tragedy of American slavery in 1787 as a pretext for casting aspersions on the Founders’ great work. Why should we listen to the authors of the Constitution? They allowed slavery to exist. They thought black people were only three-fifths of a person. So goes the liberal take on the Constitution.

It wasn’t true then. It’s not true now. Lincoln knew that if the Founders had tried to ban slavery outright in 1787, the liberty-promoting Constitution would never have been adopted. But the principles of the Declaration of Independence as embodied in the Constitution were, Lincoln said, like “apples of gold in pictures of silver.” Lincoln used the words of Scripture to speak of his awe and reverence for the Founders’ work. Should we have less?

Good way to put it, Senator, because your lack of awareness indicates that at least you know your Constitution well enough to recognize that it contains no basis for this latest exercise in federal elbow-throwing.

Sen. Akaka’s colleague Sen. Jack Reed (D-RI) could learn from him. Sen. Reed was asked by a reporter “where in the Constitution does Congress get its authority to mandate that individuals purchase health insurance?”

Reed responded, “I would have to check the specific sections, so I’ll have to get back to you on the specific section. But it is not unusual that the Congress has required individuals to do things, like sign up for the draft and do many other things too, which I don’t think are explicitly contained (in the Constitution).”

Sen. Reed is an undoubted patriot, a former Marine who served honorably in Vietnam. So it is disappointing that someone of his political stature would equate the draft with an individual federal mandate of citizens for non-military purposes. To what “many other things” is Reed referring?

In the 1918 Arver v. United States case, the Supreme Court ruled that the draft is constitutional because it is essence an implementation of the Constitution’s provision for the federal government to create a standing army (Article I, Section 8). Men (and women) are needed to defend the nation, and during times of national crisis conscription might be needed.

The Democratic health plan (H.R. 3962), passed last weekend in the House, goes well beyond any authority conferred on the federal government, through our written Constitution, by “We, the People.” In fact, the congressional Joint Committee on Taxation (JCT) wrote to the House Ways and Means Committee that “failure to comply with the terms of the law that the Democrats passed last weekend could put people in jail. The JCT told the committee that anyone who decides not to maintain “acceptable health insurance coverage” or, absent that, pay the individual health insurance mandate tax of about 2.5 percent of income, would be liable to large fines or prison sentences” (The Washington Times, “Tax Penalties and Prison,” by Donald Lambro, November 12, 2009).

The JCT went on to write that “H.R. 3962 provides that an individual (or a husband and wife in the case of a joint return) who does not, at anytime during the taxable year, maintain acceptable health insurance coverage for himself or herself and each of his or her qualifying children is subject to an additional tax.”

This mandate is unconstitutional in its own right and also poses a serious threat to the fundamental liberty of ordinary Americans: When the federal government requires specific economic activity (in this case, the purchase or acceptance of a health insurance plan) and threatens to impose “fines or prison sentences” for non-compliance, our essential freedom as citizens is eroded and our path into coerced political subjection all the more obvious – and dangerous.

But there is another issue that we have raised and will keep raising as the debate goes forward: The constitutionality of the Democratic plans.

When Speaker Nancy Pelosi was asked recently at the introduction of her mammoth health care “reform” bill if the measure was constitutional, the usually glib Californian was caught off-guard.  “Are you serious?” she asked.  And, a second time, “Are you serious?”  She then turned to another reporter without answering further.

At least House Majority Leader Steny Hoyer gives the Constitution a guilty nod.  He says that the “general welfare” clause gives Congress the right to pass a massive health care bill full of mandates on businesses and individuals and higher taxes for all.

Mr. Hoyer’s theory of constitutional interpretation would surprise the document’s chief author, James Madison.  In a letter written in 1831, he said, “With respect to the 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.”

In other words, the Constitution gives the federal government few and closely proscribed powers.  Those powers not given to the federal government “shall not be construed to deny or disparage others retained by the people” (the Ninth Amendment), and “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” (the Tenth Amendment).

The “general welfare,” then, refers only to those things the Constitution allows or requires the federal government to do (“the powers connected with them” under the Constitution).   Thus, the general welfare is advanced when the federal government does those things it is charged by the Constitution to do – nothing more, nothing less.

The “general welfare” clause is not an open-ended endorsement of whatever Congress deems in a given moment is in the public interest.  Were that the meaning of “general welfare,” no Constitution itself would even be necessary – Congress could simply do whatever it wants regardless of any constitutional limitations.

Of course, that’s what Congress does most of the time anyway.  But at least conservatives can appeal to a written text whose meaning is clear.  Were it not, why have a provision for its amendment (why amend something you can simply reinterpret?) and why have an existing and profoundly important amendment that says those things not delegated to the federal government are in the hands of the states (the Tenth)?

Another supporter of Congress’s health care power grab, Dean Erwin Cherminsky of the University of California, Irvine School of Law, argues that Congress can enact sweeping health reform under the Interstate Commerce Clause (Article I, Section 8).  His reasoning?  The “cumulative impact” of health care activity “across the country.”

Dean Cherminsky cites “an unbroken line of precedents stretching back 70 years.”  But nowhere does he cite something far more significant – indeed, conclusive – than the rulings of positivist, post-New Deal courts: The original intent of the Constitution’s authors and signers.

As noted by Georgetown University Law Center professor Randy E. Barnett in the University of Chicago Law Review (former Chicago Law Professor Obama, are you listening?), “according to the original meaning of the Commerce Clause, Congress has power to specify rules to govern the manner by which people may exchange or trade goods from one state to another, to remove obstructions to domestic trade erected by states, and to both regulate and restrict the flow of goods to and from other nations (and the Indian tribes) for the purpose of promoting the domestic economy and foreign trade.”

Put a bit more simply, the Clause was simply designed to prevent multiple barriers to trade among the various states.  The Clause was “a necessary control on the conduct of some of the importing States toward their non-importing neighbors” (James Madison, 1832).  It was never intended to serve as a pretext for Congress to micromanage, control and/or fund (through taxation) any national economic program, including one that would concentrate regulatory and competitive power over medical care in the hands of the U.S. government.

There is no constitutional basis for the Obama/Pelosi/Baucus approach to health reform.  Period.  Let us not delude ourselves that this is a serious constitutional debate – the debate does not exist, at least within the realm of intellectual honesty.  It is settled.

The Democratic Congress does not care, nor does the President, nor do many Republicans.  But “we, the People,” should, especially if we care about remaining a nation whose God-bestowed liberties and rights are protected not by the legislative confections of Congress but by a written Constitution whose text defends us from the intrusions of the federal state – if, but only if, we are willing to follow it.

Robert Schwarzwalder has served as chief of staff to two Members of Congress and was a presidential appointee under George W. Bush at the Department of Health and Human Services.