Commentary Magazine


ObamaCare and the Constitution

I agree with the Wall Street Journal that the Supreme Court’s case deciding the constitutionality of the Patient Protection and Affordable Care Act (with oral arguments commencing today) is among the most important and consequential in our lifetime. “The powers that the Obama Administration is claiming change the structure of the American government as it has existed for 225 years,” according to the Journal. “It is not an exaggeration to say that the Supreme Court’s answers may constitute a hinge in the history of American liberty and limited and enumerated government. The Justices must decide if those principles still mean something.”

But while President Obama is pushing the boundaries of federal power to the breaking point, his actions can also be seen as the logical extension of the progressive movement, what with its collectivist impulses, its disregard for the separation of powers, and its basic contempt for the American Constitution. The Constitution, after all, is (among other things) a check on the power of the state. Which means that James Madison’s handiwork is an impediment to the designs of progressives, who want to cede ever greater authority to the federal government.

Rather than publicly argue that we ought to jettison the Constitution, those on the left have settled on a strategy to fundamentally reinterpret it. This project travels under the banner of a “living Constitution.” What this means in reality is that the Constitution has no fixed meaning; it is as malleable as hot wax, to the point that new rights can be invented and old rights can be jettisoned based on judges’ predilections, ideologies, passions, and will; on the season of the year, the day of the week, the time of the day. It really doesn’t matter, since the Constitution is viewed as a means to a (political) end. It is a rootless document. Everything is up for grabs.

In that sense, what liberal judges and justices do is something of a charade. They will simply make the Constitution conform to their pre-ordained conclusions (and so abortion is deemed to be a constitutional right, the death penalty is cruel and unusual punishment, the Commerce Clause allows for an individual health care mandate, et cetera). But for a variety of reasons, they cannot be fully candid about how low their regard for the Constitution is. And so they often go through contortions that are intellectually unserious and, if the stakes were less, comical.

The Constitution is an “evolving” document, we’re told by those on the left, conforming to “standards of decency that mark the progress of a maturing society.” But who gets to decide which direction the evolution goes? Who is the arbiter of enlightenment, the adjudicator of decent standards, the fount of all human wisdom? Give yourself a gold star if you answered “a Supreme Court Justice.” Because surely Sonia Sotomayor and Stephen Breyer know more about standards of decency than — well, than whom exactly?

As Justice Scalia has written, “As soon as the discussion goes beyond the issue of whether the Constitution is static, the evolutionists divide into as many camps as there are individual views of the good, the true, and the beautiful. I think that is inevitably so, which means that evolutionism is simply not a practicable constitutional philosophy.”

For progressives, that may be precisely the point.

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