Is the Constitution Constitutional

The question of the constitutionality of ObamaCare was a fundamental question of the function of the Constitution. It was not a technical question if the law fit with the exact powers of Congress as delineated by the Constitution (though obviously the legal argument must address only this question.) Conservative objection to ObamaCare is rooted in their understanding of the limitations and functions of government, and in the proper divisions of government as it is set up by the constitution. They are not opposed to it because it is unconstitutional – it is unconstitutional for the same reason that they are opposed to it.

The connection between objections and support for the law, and arguments about its constitutionality, are quite telling. Supporters of the law believe it must be constitutional since it is a good law. Opponents of the law oppose it due to their view of constitutional balances. For liberals, the desirability of the law dictates its constitutionality. For conservatives, the law violates the system set up by the constitution, and is therefore a terrible law.

Once the law is passed in Congress, the only way to fight it in the courts is by arguing it is unconstitutional. The recent focus on the legal arguments in the court has apparently caused some commentators to forget the reason for the objections to the law. The law is a bad law, regardless of its constitutionality. But more than that – if the constitution allows the law, it is a bad constitution. Supporters obviously see it the other way, that if the law was unconstitutional that would mean there is something very wrong with the constitution.

Either the Constitution is meant to allow all good laws, or to prevent bad laws. A simple statement which might seem like two sides of the same tautological coin. But the two are quite different, and only one is right. Every law is seen by its promoters as a good law. A government system which is set up to guarantee the passage of good laws will encourage the passage of any law. It will not force restraint and responsibility on law makers, and will rather grant them limitless power. A government structure which will ensure a responsible government must limit the laws which a government can adopt, even if the legislators believe it is a truly beneficial law. The constitution will focus on preventing bad laws, not encouraging good ones.

This issues is directly related to the two opposing views on the role and beneficence of government. Liberals see government as a positive force which should actively promote the social welfare. Conservatives see the government as a centralized power which can easily be abused, and which cannot determine what is good for the people. Government must be restrained from encroaching on the lives on individuals, and restricted to public projects.

Another question that splits along the same lines is the definition of the simple concept “public welfare”. Does this mean anything which benefits large sectors of the population (liberal interpretation), or anything which is by it nature a public good – roads, parks, zoning, and such (conservative interpretation.) While liberals seem to see any good enjoyed by many people as “providing for the public welfare”, this interpretation means there is no limit on what the government can do. Conservatives correctly under

For conservatives, the Constitution is the document which ensures the government will not spill over from the public to the private sphere, no matter how worthy the initial justification. ObamaCare, and specifically its individual mandate, are a clear violation of that line. If they are not unconstitutional, that means there is no meaning to the constitution, as it does not restrict the government to the public sphere. For liberals, the Constitution was never meant to restrict government, and its only purpose is to set the proper procedures for passing laws. Declaring a law unconstitutional, in the liberal mind, makes no sense, unless the law which was challenged restricted individuals in their free activity. In the liberal view, unconstitutionality can only be substantive, while in the conservative view it can only be procedural.

The four liberal justices, as expected, opined that ObamaCare was constitutional. No one was getting hurt, and the government is providing for the social welfare, so there is not much to be unconstitutional about it. Four of the conservative justices (or, more correctly, three conservative judges and the one libertarian judge LINK) decided, again as expected, that ObamaCare is unconstitutional. ObamaCare definitely crosses the line between public policy and private activity, and cannot possibly be constitutional. Chief Justice Roberts broke with both sides, declaring the law unconstitutional as a regulation of commerce, but constitutional as a tax. His opinion is a great puzzle. If Congress may control individual behavior through their power to tax, why not through their power to regulate commerce?

ObamaCare can only be Constitutional if the Constitution does not limit the government’s involvement in personal decisions. If it can be upheld as a tax, it makes no sense not to uphold it as a regulation of commerce. It is a regulation of commerce, if individual decisions fall under the authority of Congress’ power to regulate commerce. It is also public welfare, but only if providing welfare to individuals constitutes public welfare. If the Constitution is meant to restrict the government to the public sphere, as the framers clearly intended, then public welfare means only public projects, and regulating commerce means only the legal framework of commerce. If the power to tax, or the Commerce Clause, allow Congress to control individual behavior, the Constitution itself fails to respect its goal, as it does not provide any check on the government’s encroachment on individual behavior.


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