Is ‘Obamacare’ constitutional? Your opinion is as good as mine—or that of any Supreme Court justice. Consider, if you will, the evidence: During the oral arguments on the health-care law’s “individual mandate” last week, four liberal justices seemed quite confident that the mandate—which requires all Americans to have health insurance—was permissible under the Constitution’s Commerce Clause. Four conservative justices apparently were just as certain it was not, with a fifth—Justice Anthony Kennedy—indicating he leaned that way. With their pointed comments and loaded questions, the justices revealed either an instinctive approval or distaste for the law. Legal concepts and precedent were summoned only to justify their gut feelings.
In his new book, The Righteous Mind, social psychologist Jonathan Haidt elegantly explains this phenomenon. Liberals and conservatives see the world so differently, Haidt says, because they hold different values, or “moral intuitions.” Above all else, liberals value economic fairness and care for the less fortunate. They instinctively approve of a law designed to help provide health-care coverage to 30 million uninsured people, many of them poor. So they reason backward to the desired result: Of course it’s constitutional. Conservatives, on the other hand, place far greater value on individual liberty. They are therefore appalled by what they see as the mandate’s unprecedented intrusion on personal choice, and reason backward: Of course it’s unconstitutional. Who’s right? Let’s not pretend the answer will be found in a painstaking parsing of the Commerce Clause. It’s a question of values, and whether your side has the most votes.