“The strict and arbitrary language of an antique Constitution.”  Wait… what?

This is a quote from Ronald Dworkin’s article, Why the Health Care Challenge is Wrong, posted to The New York Review of Books blog (hat tip to James Taranto of the WSJ’s Best of The Web Today column).  To be fair, Dworkin makes some relevant points, things I think most can agree on.  Health care in America is expensive, and the system seems at times to work in an unjust manner.  Yes, we have access to some of the best doctors, medical technology, and medications in the world.  We also have some of the highest costs.  And too often we hear stories of families bankrupted by an unexpected and devastating family illness.

But this article, and the thinking behind it, is less than scholarly.  Actually, it’s dangerous.  The thesis here can be summed up with this quote:

If the Court does declare the Act unconstitutional, it will have ruled that Congress lacks the power to adopt what it thought the most effective, efficient, fair, and politically viable remedy—not because that national remedy would violate anybody’s rights, or limit anyone’s liberty in ways a state government could not, or would be otherwise unfair, but for the sole reason that in the Court’s opinion the strict and arbitrary language of an antique Constitution denies our national legislature the power to enact the only politically possible national program.

This is something I might expect to see from a high school student.  But Dworkin is a law professor at NYU!  It honestly worries me that this man is responsible for preparing women and men who will one day work in the legal profession.  But I digress.

Can the federal government really create any law it thinks to be the “most effective, efficient, fair, and politically viable remedy” for a societal problem?  If so, then where did Dworkin stand on the creation of the Patriot Act?  I imagine he was an enthusiastic supporter of this popularly supported “remedy.”

Actually, here is what Dworkin wrote in 2002:

What has al-Qaeda done to our Constitution, and to our national standards of fairness and decency? Since September 11, the government has enacted legislation, adopted policies, and threatened procedures that are not consistent with our established laws and values and would have been unthinkable before.

But, wait, wasn’t the Bush Administration simply seeking to adopt legislation that was effective and politically viable?  The Patriot Act, after all, received far more bipartisan support than did the Patient Protection and Affordable Care Act (ObamaCare).  The Patriot Act passed with just one dissenting vote in the Senate and only 66 dissenting votes in the House.  Dworkin goes on to say that the USA Patriot Act sets out “new” and “breathtakingly vague and broad” definition of terrorism.

Isn’t the individual mandate within Obamacare similarly vague and broad?  After all, it rethinks and re-engineers the commerce clause of the US Constitution in order to, in a sense, define living as an act of commerce.  If you live, the thinking goes, then at some time in the future you will need some manner of health care, therefore, the government has a right to force you preemptively into the health care system and compel you to purchase a government-approved healthcare plan from the private market.

The problem is, if I live, I will at some time in the future also have to eat.  Does that give the federal government the right to tell me what I can buy, at what cost, and how much of any item I should be buying?  If commerce is not just the act of buying or selling, but the potential to buy and sell, then truly there is nothing the federal government cannot regulate.

But the commerce clause was never written for such a purpose, or with this thinking in mind, and trying to turn it to that purpose seems to me to be a bit like deciding a lawnmower might also make an effective washing machine.  After all, you just turn that lawnmower over, pour in water and some soap along with your clothes, and they’ll get mixed and churned just like they would in regular washer, right?  Sounds reasonable to me

This is why Dworkin’s reasoning seems so lazy and sloppy. Like it or not, the Constitution limits the power of government.  The federal government has rights and limitations not enjoyed by states, and vice versa.

So, while Massachusetts can legally mandate the purchase of health insurance from the private market for its residents, the federal government cannot.  Does this seem unreasonable? Perhaps; but this is the way the Constitution works.  A single, all-powerful government is not to be trusted very simply because people are not to be trusted.  So the authors of the Constitution built in limitations meant to protect and empower citizens.

But a reinterpretation of the commerce clause was not the only way the Obama Administration could have crafted the PPACA.  There was a much better and more direct way of funding health care for under or uninsured Americans.

Congress could have done what it did when it created Medicare; it could have created a new tax to cover the projected costs.  Of course, that was unpopular at the time, as it still is today, and there weren’t enough Democrats willing to vote for a new tax, or at least in such an obvious way.  The other difficulty was that, as Americans learned more and more about the legislation, support rapidly declined.  Americans have become understandably wary of monster legislation packages.  They tend to be a witches brew of various parts and pieces; a little of this, a little of that, and a side of this other thing thrown in for good measure.  And, of course, politicians love to tack on additional spending for good measure.

The Bush Administration learned this lesson with attempts to reform the immigration system.  Americans wanted immigration reform, but they did not trust the large, complex piece of legislation crafted in Congress.

And this effort parallels the Obamacare legislation process in many ways, though not all.  For example, despite a firm “no” from voters, Democrats chose to ram the legislation through Congress anyway.  With immigration reform, Republicans in Congress, having heard the concerns of their constituents, brought the process to a halt. T

he other difference of course is the individual mandate; a “new, breathtakingly vague and broad definition” of the commerce clause.  Would Dworkin have been as enthusiastic about this legislation had it been proposed and advanced by the Bush Administration?

Having been passed into law by an administration and Congress that he trusts, can Dworkin be sure some future administration won’t take advantage of this re-imagined commerce clause?  That was, after all, one of the main complaints regarding the Patriot Act, its future potential for mischief on the part of an overly aggressive federal government.  Of course, that’s why legislators built in a sunset provision.

But if the US Constitution really is “antique” with “strict and arbitrary” language, as Dworkin has said (and perhaps President Obama believes), then what’s the solution?  The founders understood that views might one day change and they wrote in a process for changing the Constitution.  It’s called an amendment, and we’ve so far amended the Constitution 27 times.

So, we do have a process for keeping the Constitution relevant, even if that process is long and arduous and requires broad public support.  Is this too difficult a concept for a law professor to grasp, or too inconvenient?

Methinks the latter.