Health Care Reform And The Constitution (UPDATED)

I think one of the more creative (though still invalid) right-wing argument against health care reform is that it would be unconstitutional. Which part of the constitution, they ask, allows Congress to establish something like the public option?

Article I, Section VIII. The opening part, to be exact:

The Congress shall have 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

[Emphasis mine]

Reading article I, you’ll find that Congress was given pretty broad powers to deal with a wide variety of different issues. “General welfare” is a vague term that certainly can be read as providing health care for the American people.

The conservative response to tends to be something along the lines of this 1817 quote from Thomas Jefferson:

Congress had not unlimited powers to provide  for the general welfare, but were restrained to those specifically enumerated… as it was never meant they should provide for that welfare but by the exercise of the enumerated powers.

While that is an actual quote from Thomas Jefferson, it is largely irrelevant here.

Let me explain.

People often refer to ‘the founders’ as if they were some kind of monolithic group with a single philosophy on how the United States should be.

In reality, ‘the founders’ were an extraordinarily diverse group of individuals who represented a variety of different (and often competing) interests. The Constitution isn’t an embodiment of the founders’ philosophy as much as it is a series of compromises between their different philosophies–slave states versus free states, small states versus large states, strong executive versus weak executive, strong central government versus decentralized government, unicameral legislature versus bicameral legislature, and so on.

You could look at the writings of a great many founders and find a number of quotes that support a variety of different positions. But the truth is, the states didn’t ratify Jefferson’s private thoughts, or Hamilton’s, or Madison’s; the states ratified the Constitution as it was written.

While we certainly can–and should–look to the writings of the various founding fathers to better understand the Constitution, the idea that you can cherry-pick a single quote from a single founder and hold it up as proof that the Constitution should be interpreted one way–particularly when that quote’s sentiment is found nowhere within the text of the Constitution itself–is ridiculous.

The United States is, without question, the greatest country in the world. And the founding fathers took enormous risks and accomplished a monumental task by fighting the Revolutionary War and establishing a free, independent United States of America. But we cannot–and should not–sugar-coat history. The founders were not perfect, nor was their creation perfect–the Constitution, as written by the founders, perpetuated slavery and allowed only white male landowners to vote.

So while I certainly do not intend to denigrate the work of the founders, we should not mindlessly elevate them to the point at which nothing they ever wrote can ever be questioned or contradicted; to the point which we treat their words (at least those words that are not included in the Constitution) as infallible gospel.

As Thomas Jefferson once wrote:

I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.

Yes, I understand the irony of me quoting Jefferson here. But his point was that societies change over time and, therefore, that society’s laws and institutions must change with it. The idea that we can look back on what someone like Jefferson wanted 230 years ago and apply that as iron-clad law as to how things should be today is absurd; even Jefferson himself admitted as much.

Getting back to my original point, if health care reform passes the Senate and is signed by the President then it will become law; there is basically a zero percent chance that the courts will strike it down as unconstitutional.

So while conservatives are free to declare that things they dislike are unconstitutional, unless they can get the Supreme Court to agree with their interpretation than their arguments are, for all intents and purposes, invalid, as their argument certainly is in this case.

I give them points for creativity, though.

UPDATE: Another thing conservatives point to in arguing that health care reform is unconstitutional is 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.

My response is, first, good luck getting the courts to overturn health care reform on 10th Amendment grounds. You can argue that this piece of the Constitution or that piece of the Constitution mean that this law or that law is unconstitutional, but unless you can get the courts to enshrine that view in policy then your argument doesn’t mean much of anything.

Second, I see your 10th Amendment and raise you the 9th Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

When the Bill of Rights was first proposed, some people were terrified that, if you specifically outlined which rights the citizens were entitled to, the government would read that outline as narrowly as possible in order to deny the people any right that wasn’t specifically spelled out.

Hence the 9th Amendment, which basically says that just because a right isn’t specifically written in the Constitution doesn’t mean the people aren’t entitled to it.

So I would argue that, in this day and age, the American people have a right to health care. And I would also argue that the Constitution certainly grants Congress the power to protect that right.

Yes, that’s just my opinion; I’m no constitutional scholar. But something tells me that, when this is all said and done, my view will be somewhat closer to reality than those who argue that health care reform violates the Constitution.

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