Back in colonial times, before our nation was a nation, and when we were fighting to establish our independence from England, people who remained loyal to the British crown were known as Loyalists, or Tories. Not all Tories are dead. Some went to law school and became strict constructionists, preferring to interpret the U.S. Constitution literally, and they live among us defending the life and society of the late 18th century as the only possible one.
Such, seemingly, are David Rivkin and Lee Casey, authors of "Illegal Health Reform," an op-ed piece in the Washington Post today. They are Loyalists in both the throwback-to-1776 sense, and in the sense of their allegiance to the Republican Party, as former Reagan/Bush Justice Department officials. They've been unleashed by their party to attack health care reform on a new front. We all know that health care, in the GOP view, is anathema; that it's a socialist plot; that it's a government takeover, and that it's immoral. Now Rivkin and Casey argue, with the same impeccable logic and incisive analysis that supports those other Republican arguments, that it's also ... unconstitutional! (Their line of attack is a slightly more sophisticated version of the manifestly loopy argument we heard from those anti-health citizens at recent town hall meetings, i.e., "there's no guarantee of health care in the constitution.")
Specifically, our intrepid strict constructionists say that the "individual mandate" - a requirement that everyone must obtain insurance - is illegal because the Constitution grants Congress no power to enact such a requirement. The "interstate commerce" clause (the legal grounding of many federal government regulations), they assert, is not applicable because a mandate to have health insurance could never be justified as "quintessentially economic." Further, they claim, the government's taxing authority is insufficient because of precedents, according to which the government can't use its taxing authority to get at an activity over which it otherwise has no power. (Let's credit the authors with at least acknowledging the Constitution sometimes may be "interpreted," though I'm sure it really sticks in their craws to admit it.)
The appropriate response to both arguments - to use a term from the Tory era - is "balderdash!" Not economic? Perhaps not, if you live in the 18th century, or believe the world is flat, but it seems to me that today's jurists would have little trouble seeing that in the "service economy," the purchase/sale of health care is just as real an economic activity as trading wheat. As for taxation, if the authors are correct in their reading of existing case law, it's surprising they are not arguing against the precedents. After all, the Constitution grants Congress the power to "lay and collect Taxes to ... provide for the common Defense and general Welfare of the United States." (My emphasis.)
Of course the difficulty is that strict constructionists prefer to apply their principles only when it's helpful in blocking something they don't like. (Should they be called "strict obstructionist? It suits them.) Otherwise, I'm sure they would have objected in the 1960's when (at Republican insistence) the profitable segment of the post office mail monopoly was handed to private delivery companies (Constitution: Congress has the power "to establish Post Offices"); and it certainly would have been necessary to leave ourselves defenseless against our enemies, since the Constitution authorizes Congress to "raise and support Armies," and to "provide and maintain a Navy," but says nary a word about an Air Force. Such is the quandary of the literalist.
Of course, some of what I've written above is tongue-in-cheek, but for me, the bottom line is this: The strength of our Constitution has been its adaptability. I'm confident that serious politicians can find ways to ensure that our government can function effectively to provide the services and protections that people everywhere quite reasonably expect their government to provide. If not -- if Rivkin and Casey are correct and the Immutable Document truly prevents us from providing our citizens something as basic as equal access to health care -- then we need a new Constitution.
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