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Health reform: Unwise, not unconstitutional
Republicans John Ensign and Jim DeMint are reviving a 200-year-old theory to argue that the Obama-Reid bill violates the Constitution by making Americans buy health insurance. The GOP may regret playing along
David Frum
David Frum
I

s the Obama-Reid health reform plan unconstitutional?

The answer to that should be obvious: the Reid-Obama plan may be unwise, unsound, and unaffordable ... but it is unquestionably constitutional.

The federal government already requires every American to purchase health insurance. That's what Medicare does. The difference now is that everyone will be required to buy a private plan to cover them up to age 65 in addition to the government-run plan they are compelled to buy to cover them after 65.

I don’t hear anyone in Congress suggesting that Medicare violates the Constitution. So how can the new plan be unconstitutional if the old plan is OK?

Yet two Republican senators — Jim DeMint of South Carolina and John Ensign of Nevada — are arguing the opposite, and will try to force a to vote on that question.
 
To what end? The Ensign-DeMint exercise will not stop the Reid-Obama plan. Nor will it much impress the courts. Since the challenges to Social Security were rejected by the Supreme Court in 1937, the courts have consistently held that the general welfare clause of the Constitution empowers Congress to create social welfare plans based on compulsory contribution. (Helvering v. Davis is the most relevant case.)

Precisely because of the vote's futility, many Republican senators may perceive it as a base-pandering freebie and cast a posturing "aye."

Yet this seemingly free vote may have costly consequences.

DeMint's and Ensign's argument against the constitutionality of the Obama-Reid health reform rests upon the ancient theory of enumerated powers. Under this theory, Congress may do only what the Constitution specifically authorizes Congress to do. Since (for example) the Constitution does not mention a national bank, Congress may not charter banks.

The theory exerted a lively influence upon the politics of the 1790s, when it was enthusiastically promoted by the party led by James Madison and Thomas Jefferson. The heart went out of the theory in 1805, when then President Jefferson purchased Louisiana from the French in 1805. The Constitution had said nothing about THAT either.

The Civil War finished off the theory for all practical political purposes. Since 1865, the doctrine of enumerated power has subsisted at the remote margins of American politics. Are Republicans proposing now to resurrect the constitutional theories of Roger Taney?

In fairness to the senatorial GOP, let it be acknowledged that almost every one of the votes cast in favor of the DeMint-Ensign motion will be cast without conviction. The modern Republican party is not seeking to relitigate the controversies of the 1790s. It does not doubt the constitutional validity of the Federal Reserve.

But will the voters recognize that what looks like an attempt to reverse 200 years of constitutional history is really just an exercise in blowing off steam? That conservatives — after denouncing judicial activism for 35 years — are not now ourselves looking to the courts to fight our battles for us?

It was aggressive liberal legalists who tried to use the Constitution to win fights that they could not or would not contest in the court of public opinion. Conservative jurists used to understand, with Robert Bork and Oliver Wendell Holmes, that laws can be unwise without being unconstitutional. As Holmes wrote in his legendary dissent in the Lochner case: "my [judicial] agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law."

Are we suddenly to align ourselves with the Brennans against the Borks, with the authors of Roe v. Wade against the constitutionalism of Alexander Hamilton? Even if it’s just a one-day stunt, that’s the wrong place to stand.

CORRECTION: This piece originally suggested that the Constitution speaks only of a Supreme court. As a number of readers have reminded me, Article III of the Constitution does indeed mention inferior federal courts. I regret the error.

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