There has been a lively debate about the constitutionality of the Democrats’ health-care legislation, one that has drawn in not only academics and journalists but Senator Orrin Hatch and Speaker Nancy Pelosi. I don’t intend to try to settle that debate — I haven’t done the necessary historical work on the commerce clause, the Tenth Amendment, the taxing power, and their interrelation — but instead want to make a comment on it.
In my view, the debate has been unduly narrow in two ways. The first is that too many commentators have dwelt on the question of how the courts are likely to treat the legislation — or, at best, what they should do consistent with their precedents — rather than on the distinct question of whether the Constitution, properly interpreted, grants Congress the power to enact this legislation. We should never accede to the proposition that the Constitution is whatever the courts say it is. That these questions are often substituted for each other is a symptom of the spread in our political culture of the assumptions of judicial supremacy.
The second is that the debate has looked exclusively at the constitutionality of making health insurance compulsory. Conservatives have been pressing this case both because the case law gives them an opening and because enactment of a requirement to buy insurance really would mark a change in the relation of the federal government to individuals.
The argument that has not been made (or at least not made often) is that the whole legislation — not just the individual mandate — exceeds the constitutional powers of the federal government. This classic conservative position has gone unvoiced. I suspect that it has done so because, again, of the influence of judicial supremacy. We have been trained to think that saying that an overhaul of American health care exceeds the legitimate powers of Congress is equivalent to calling for the judicial invalidation of health-care legislation (along with much of modern government, by implication). Since that would be absurd to call for, we don’t say it.
At the risk of being thought quixotic, let me suggest that we need to revive a dormant tradition of legislative reasoning and argument about the Constitution. In this kind of constitutional reasoning considerations that it would be improper for judges to invoke have their place. A congressman ought to be able to say — should say — that it is ludicrous to think that the Reid bill is necessary to make commerce among the states in health care regular, and that nobody guided by the Constitution’s design of a limited government would even begin to contemplate it. That type of defense of the Constitution judges are not equipped to do.