So, on Monday, the Supreme Court will begin hearing oral arguments about Obamacare and its constitutionality. Krauthammer, as always, has interesting things to say about it, but I want to touch on just one bit.
Beginning Monday, the Supreme Court will hear challenges to the law. The American people, by an astonishing two-thirds majority, want the law and/or the individual mandate tossed out by the court. In practice, however, questions this momentous are generally decided 5 to 4 — i.e., they depend on whatever side of the bed Justice Anthony Kennedy gets out of that morning.
Ultimately, the question will hinge on whether the Commerce Clause has any limits. If the federal government can compel a private citizen, under threat of a federally imposed penalty, to engage in a private contract with a private entity (to buy health insurance), is there anything the federal government cannot compel the citizen to do?
Here’s the thing. We have all heard the term “the social contract.” But in America, THE social contract is the Constitution of the United States. If a strong majority of the people read the Constitution (correctly, IMHO) to read that nothing in that document allows the government to coerce a citizen to buy a product he or she may not wish, THAT is the only true measure by which the validity of a law can stand. Whatever the Supreme Court may rule, the laws of the United States derive their legitimacy from the Constitution, and the Constitution only derives its legitimacy from the citizens. To turn around and tell the citizenry that their (collective) interpretation is irrelevant, is to risk the citizenry telling the government that it is not only irrelevant, but illegitimate.
A great deal of the success of the United States has been in no small part due to the stability of our political institutions. That stability has not been because of the military power, or social justice initiatives of the government, but because, by and large, the people have felt that the government was in fact representative of them, and thus legitimate. It would be folly for the Supreme Court to give the people further evidence that it just isn’t so.
I’ll encourage my readers who aren’t familiar with him to visit Jeff Goldstein at Protein Wisdom. For a long time, a central theme of his blog has been the intentionalism of language, and how often words have been so twisted by those with an agenda opposite of an author as to cause those words to lose all meaning.