The Choice

Posted By Elgin Hushbeck

One of the key differences between liberals/progressives and conservatives is highlighted by Michael Tomasky’s analysis of the upcoming Supreme Court ruling on ObamaCare and its impact on Obama’s reelection chances. Basically Tomasky argues that Liberals are in a no win situation. If the court strikes down ObamaCare, then they lose the gains they worked so hard to win. On the other hand, if the court upholds the bill, chances are it will energize conservatives even more, ensuring Obama’s defeat, which Tomasky believes “could be even worse for the progressive cause.”

Tomsaky gives a brief and I believe accurate overview of court history, with the dividing line in 1937. Prior to 1937 the court was hostile to the liberal/progressive cause. Then “FDR finally was able to start naming justices to the court who granted Congress wider leeway in regulating economic activity.”

But while Tomsaky is clear that the Supreme Court overturning ObamaCare would “be a disaster in terms of legal precedent” he provides no legal reasoning as to why. In fact his reasoning is basically that this would take the court back to “pre-1937 thinking.”

For Tomsaky, everything is judged in terms of the results, i.e., its effect on the progressive cause. Thus the quandary, if the court overturns the law the progressive cause for health care is harmed. If the court upholds the law, Obama’s reelection is threatened, and that “could be even worse for the progressive cause.”

Missing from all this is the effects on the Constitution. In terms of the Constitution, this case turns on the commerce clause and, in a more general sense, its purpose in the Constitution itself. Conservatives hold the historical view of the Constitution, i.e., that it specifics the powers of the federal government. The founders clearly wanted a limited federal government. Their first attempt, with the Articles of Confederation, proved to be too limited. These were replaced by the Constitution in 1789. This was again to be a limited federal government and the big debate over the Constitution was whether or not it went too far and gave the Federal Government too much power.

Article 1 section 8 lists the powers of the Congress and the 3rd clause, called the commerce clause, says that Congress has the power,

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

Article 1 Section 8 lists these powers because the founders believed that the Constitution was a limit on the Federal government; it had no powers except those granted to it by the Constitution. In fact the reason the Bill of Rights was not included, and was initially opposed by the man considered to be the Father of the Constitution, James Madison, is that he believed it was unnecessary. For example, the government could not infringe on free speech because the Constitution did not give it the power to do so. He argued that adding any list of rights was dangerous as it would imply that only the rights listed were protected. Thus when the Bill of Right was added, it included the 10th amendment,

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.

If the Constitution does not give the federal government the power to do something, they don’t have that power, the state or the people have that power. Under this view, which prevailed until 1937, the commerce clause granted Congress the power to regulate commerce “among the several states,” but not commerce within states.

When we come to ObamaCare, the choice is pretty easy. ObamaCare requires people to purchase health insurance. Under a pre-1937 view of the Constitution this is a no-brainer. How can someone who is choosing not to engage in commerce, i.e., is not buying health care insurance, be regulated under a provision of the Constitution that regulates interstate commerce? The issue is further compounded by the fact that even if a person chooses to purchase health care insurance, they currently cannot purchase across state lines. Since there is no interstate commerce in health insurance, how can the federal government regulate it on the basis of interstate commerce?

A deeper and more troubling issue would be, if the government can mandate that you purchase health insurance, then just want can’t they do? Obama recently said that we “have to eat your peas.” Why couldn’t they mandate that we eat a certain federally approved diet? Or that we have to purchase membership in health clubs and exercise 3 times a week. If they can force a citizen to purchase health insurance, what does the whole concept of limited government mean?

So at one level, the Supreme Court’s decision will determine whether or not ObamaCare is constitutional. But on a deeper level, the Court will be ruling on whether or not the Constitution really means anything at all. If the commerce clause is any sort of limit on the Federal Govenment, then the provision requiring people to purchase health insurance must be struck down. If it is not, then the commerce clause, and all the other clauses are meaningless, and the Federal Government can regulate anything it wants.

Some might object that we would still have the Bill of Right, and things like free speech. Perhaps. But this would not be because of anything actually written in the Constitution. Our Rights would not be something guaranteed in the Constitution, but rather something we current have, subject to the current majority of the Supreme Court.

Consider Tomasky’s statement, “As we know all too well, this court appears ready to go back to pre-1937 thinking and in fact already has, in the Citizens United case.”  The left is up in arms over the Citizens United case, because it allows corporations to spend money on political campaigns. But again they only see the results, not the Constitutional basis.

The case involved Citizens United, a conservative nonprofit corporation that had made a 90 minute move called, “Hillary: The Movie” which they wanted shown and wanted to advertise. Their efforts were blocked by the Federal Election Commission. But if the government can suppress this film, why couldn’t they also suppress the movie about Bin Laden’s death planned for release a month before the election in 2012? If they can ban a movie, why not a book or other forms of speech? As Justice Kennedy said in the majority opinion of Citizens United, “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”

Tomasky sees this ruling as a major step back towards pre-1937 thinking and a major threat to the progressive agenda. He is correct. It was a step back towards a view where the Constitution actually meant something and was a limit on what the federal government could do. So it looks like next year the Supreme Court and the country will be facing a similar choice, a choice between the Constitution and the progressive agenda. Let’s hope the Constitution wins, both in Congress, and at the ballot box.


Aug 18th, 2011

Comments are closed.