Exclusive: President Barack Obama’s health care law is heading to the rightist-dominated U.S. Supreme Court which may render a decision during the heat of Campaign 2012. Some Republican jurists are sure to claim that the law violates the “originalist” thinking of the Founders, but Robert Parry offers a differing view.
By Robert Parry
Today’s American Right is fond of pushing the idea of “originalist” thinking by the Founders to rally opposition to government initiatives that address modern-day problems. The claim is that if George Washington, James Madison and other drafters of the Constitution didn’t anticipate something, the federal government must not act on it.
This approach, which fits with what conservatives call “strict constructionism,” has a facile appeal to many Americans, especially Tea Partiers who like to dress up in Revolutionary-era garb and channel the Founders’ supposed hatred for the federal government. The argument is sure to reappear as the rightist-dominated U.S. Supreme Court considers the new health care law next year.
However, the truth is that the Founders devised the federal government to be a powerful and adaptable entity with broad implicit powers, comparable to a sophisticated software platform that can handle a variety of tasks, anticipated and unanticipated.
Most significantly on this point, the Constitution gives Congress the power to “regulate commerce with foreign Nations and among the several states,” the so-called “commerce clause,” which traces back to the very first substantive presentation at the Constitutional Convention on May 29, 1787.
Then, the Virginia delegation had one of its members, Edmund Randolph, present a critique of the Articles of Confederation, which had governed the United States for the prior decade and which created a federal system that was so weak that it threatened the future of the young nation.
Virginia’s presentation laid out the framework that would later become the U.S. Constitution, creating a powerful federal government that transferred sovereignty from the 13 original states to “we the people” as represented by a new national Republic, the United States of America.
Beyond requirements for a common defense, foreign policy, currency and federal taxing authority, the Founders recognized the need to coordinate American commerce so it could compete effectively with Europe and other nations around the world.
James Madison’s convention notes on Randolph’s presentation recount him saying that “there were many advantages, which the U. S. might acquire, which were not attainable under the confederation – such as a productive impost [or tax] – counteraction of the commercial regulations of other nations – pushing of commerce ad libitum – &c &c.”
In other words, the Founders at their most “originalist” moment understood the value of the federal government taking action to negate the commercial advantages of other countries and to take steps for “pushing of [American] commerce.” The “ad libitum – &c &c” notation suggests that Randolph provided other examples off the top of his head.
Historian Bill Chapman summarized Randolph’s point in his teaching materials as saying “we needed a government that could co-ordinate commerce in order to compete effectively with other nations.”
So, from that first day of substantive debate at the Constitutional Convention, the Founders recognized that a legitimate role of the U.S. Congress was to ensure that the nation could match up against other countries economically.
Obviously, the Founders could not anticipate every future challenge that the nation would face. But they dealt with that uncertainty by adopting the broad language of the “commerce clause.”
It is also worth going back to Randolph’s original presentation for an appreciation of how the Founders mostly a collection of businessmen, plantation owners and merchants recognized that a more unified nation would help them advance their commercial interests. Then, like now, the economy was paramount.
Over the next two centuries, various reforms have been needed to keep the U.S. economy strong, including Franklin Roosevelt’s New Deal programs and more recent federal actions such as the health care law.
These reforms can be viewed within the framework of how the Founders really thought. They were practical men who understood the imperative of keeping the U.S. economy up to speed with other nations.
Of course, they could not have anticipated the threat to the country from spiraling medical costs both on government and business nor the failure of private insurance to protect the health of millions of Americans. But they surely would have been concerned about any situation making the United States less competitive in the world.
According to Madison’s notes from May 29, 1787, Randolph “concluded with an exhortation, not to suffer the present opportunity of establishing general peace, harmony, happiness and liberty in the U. S. to pass away unimproved.” The Virginia delegation, which included Washington and Madison, considered a powerful federal government as crucial to those hopes.
(As it turned out after a contentious summer of debate and compromise Randolph joined with fellow Virginian George Mason in not signing the Constitution. Mason objected to the absence of a Bill of Rights, which was subsequently added as the first Ten Amendments to the Constitution.)
Misreading the Constitution
Today’s Tea Partiers often cite the Founders at the convention in Philadelphia as like-minded opponents of a powerful federal government, but in doing so they miss the point that the Constitution represented the most important assertion of federal authority in American history.
Besides granting sweeping powers to the federal government, the Constitution dropped key language from the Articles of Confederation that had suggested the supremacy of the states. Indeed, the Articles had described the United States only as “a firm league of friendship” among the states, not as even a “government.”
The Confederation’s Article II declared: “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated.” And very few powers were delegated to the federal government.
That powerful states’ rights language was either eliminated by the Constitution or substantially watered down.
Tea Party activists will often cite the Tenth Amendment to the Constitution as evidence that the Founders were strong advocates for states’ rights, since it says “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.”
But again the Tea Partiers are missing the point. The Constitution granted broad powers to the federal government including the regulation of national commerce so there were far fewer powers left for the states.
To further appreciate how modest the Tenth Amendment language was, you also must compare its wording with Article II of the Confederation. Remember, Article II says “each state retains its sovereignty, freedom, and independence,” while the Tenth Amendment simply says powers not granted to the federal government “are reserved to the States” or individuals.
Stripped out of the new national governing document were the principles of state “sovereignty” and state “independence.” In effect, American “sovereignty” had been transferred to the national Republic that the Constitution had created.
Still, despite the broad powers of the federal government under the “commerce clause,” the prospects for last year’s health reform law may not be bright because partisan politics could play a bigger role than anything else.
While President Barack Obama’s lawyers may make strong arguments regarding the relevance of the commerce clause to the need for a national system of health insurance, the issue is expected to be addressed by the U.S. Supreme Court during the 2012 election campaign.
And, if one thing has been clear about the Republican majority on the Supreme Court, it is that it is highly partisan, often using its power to interpret the Constitution as a club for strengthening Republican political power.
No better example exists than the case of Bush v. Gore in December 2000, when five Republican justices decided that they wanted George W. Bush in the White House and then came up with legal arguments to justify their pre-ordained conclusion.
Suddenly, right-wing justices like Antonin Scalia, Clarence Thomas and William Rehnquist were signing on to an unprecedented interpretation of the “equal protection” clause of the Fourteenth Amendment to ensure Bush’s “election,” despite him losing the national popular vote and probably the vote in Florida to Gore. [For details, see Neck Deep.]
If today’s partisan Republican justices see an opportunity to deal Obama’s reelection efforts a severe body blow, one can only expect that they will take the shot.
Just as in 2000, when the Republican justices feared losing their control of the Supreme Court if Al Gore had been allowed to take the White House (and appoint one or two Democratic justices), they will have similar fears about a reelected President Obama.
After all, the dirtiest secret about the U.S. Constitution is that it means whatever five justices on the U.S. Supreme Court say it does. Historically, justices have generally applied reason and scholarship to these determinations (with some shocking exceptions).
But today’s highly partisan atmosphere, which also pervades the Supreme Court, may well carry the day whatever the Founders would have wanted.
[For more on these topics, see Robert Parry’s Secrecy & Privilege and Neck Deep, now available in a two-book set for the discount price of only $19. For details, click here.]
Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book,Neck Deep: The Disastrous Presidency of George W. Bush, was written with two of his sons, Sam and Nat, and can be ordered at neckdeepbook.com. His two previous books, Secrecy & Privilege: The Rise of the Bush Dynasty from Watergate to Iraq and Lost History: Contras, Cocaine, the Press & ‘Project Truth’ are also available there.
Mr. Carmody, I will agree with you about mandatory health insurance if you are willing to sign a legally binding document stating you accept full responsibility for all expenses incurred regarding your personal health matters. You will not expect any healthcare providers to offer any assistance to you for illness or accident, without the understanding you will pay for all services in full. The ability to purchase health insurance after knowledge of a medical condition will be denied. Perhaps you are like Mr. Rush Limbaugh, who crowed about the excellent healthcare he received in Hawaii. He was in the hospital for three or four days and the cost was most reasonable – about the same as a midsized SUV. He simply wrote a check. How’s that for real world experience?
I’m about as left as you can get on the political spectrum and I refuse to accept the notion that the government can force me to get health insurance or fine me if I don’t. The analogy Barry used when making his aregument, that car drivers must have insurance is not relevant, it’s apples and oranges.
I am disgusted that congress has ceded so much of its powers to the executive in the wake of Watergate. What should have been a defining wake-ep call for the American people became, instead a wake-up call for the oligarchs who saw just how close they came to facing an organized, politicized electorate and decided it was time to get organized themselves. Thus the birth of right-wing think tanks and the dumbing down of the American electorate behind populist, flag-wrapped rhetoric.
Nothing Barry has done since his inauguration has been laudatory or in the interests of the American people. Aside from his continuation of the illegal wars in south Asia, there’s his craven surrender to the international financial interests. Fuck him.
Hypothetically (snark), even though it’s not constitutionally mandated (only in the preamble), what if our’s and our government’s goals were things like: justice, tranquility at home, common defence, PROMOTING GENERAL WELFARE, and liberty for ourselves and our future generations?
Wouldn’t it be a real kick in the ass if the right wing of SCOTUS thought this was what we’re supposed to be about?
I think that no matter how much the Court wants to make Obama look bad they will rule in favor of the mandate purely on economic grounds. The ability of them to channel this much money into the coffers of a greedy, heartless insurance undustry will be too tempting to pass up. They will cover it all with the proper Constitutuinal chatter but their whole aim is to please their masters–the business interests of this country, not the people.
Since I am not a Constitutional scholar nor an attorney I cannot argue this whole issue on its legalities but as a ctizen I resent the government forcing me to buy a private product without giving me the option of a public equivalent. I have been against this giveaway and will remain that way. The entire flap could have been avoided merely by including a public option at the least or opening up Medicare for everyone regardless of age.
Susan says, “I resent the government forcing me to buy a private product without giving me the option of a public equivalent.”
Agreed; is this is why we hear not a peep out of the private providersâ€”or at least not in the corporate media?
These comments are timely and cogent; well crafted. Yet in the end, five justice could decide as they did in the Citizens United case in an unwholesome way; from the standpoint of the ordinary common citizen.
I hope the Obama team are working on a response to such a poor choice that the Supreme Court could well make. We’ve seen more than one action that they have made which was simply a poor judgement-for example the judgement against allowing a suit to go forward against a sitting president in the case of Bill Clinton.
Honest mistakes in judgement can be forgiven. The conservative wing of the supreme court are casuists and poor ones at that. Consider Chief Justice Robert’s laughable argument in Citizens United that Corporation CEOs will be guided by the wishes of their stockholders. As with the right wing legislaters, how else can you explain the reasoning in one case compared to the reasoning in another case. “An increase in hedge fund trader’s taxes will hurt the economy.” “An increase in a teacher’s salary deductions will help the economy.” A cognitive dissonance diagnosis is charitable.