On: Constitutional confusion

Claiming complete comprehension of America’s constitution is akin to claiming complete comprehension of quantum mechanics: If you think you understand it, you probably don’t.

Which isn’t to insult the reader; our Constitution is a document founded upon -- and meant to articulate -- a paradox.

Today, that paradox might roughly be described thusly:

There are times when America is a conglomeration of states, each with characteristics so diverse they necessitate local governance.

There are other times, though, when America is one country and its citizenry one people; times when we are not Texans, Californians, Floridians or Hawaiians, but Americans, who collectively have a national need best handled by a central government.

Such conflicting philosophies explain why our constitution might generously be called perplexing, and might less generously be called contradictory.

There is the Tenth Amendment, that bastion of conservatism, which says that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” 

This prohibition carries great weight given James Madison’s proclamation in Federalist 45: “The powers delegated by the proposed constitution to the federal government, are few and defined. Those which are to remain in the state governments, are numerous and indefinite.” (Emphasis added.)

But there are bastions for progressivism as well -- three, actually. The Constitution has the Necessary and Proper Clause, the Commerce Clause, and the Sixteenth Amendment. The last grants Congress power to “lay and collect taxes on incomes, from whatever source derived”.

And where conservatives have James Madison, liberals have Alexander Hamilton. He wrote in Federalist 30 that taxation was such an “indispensable ingredient” to governance, America required a “complete power” to “procure a regular and adequate supply of revenue as far as the resources of the community will permit”.

That hardly describes a government whose powers are few and defined.

But so it goes, two philosophies, always in tension, always fueling debate. The question central to that debate:  Where is the line between necessary government power and tyranny?

Enter the Supreme Court, which has been tasked with the unenviable duty of sorting through the mess, law after law, year after year.

Last week, in two superb decisions, SCOTUS reaffirmed the federal government’s role in American jurisprudence. When it comes to immigration policy, America is not 50 states, but one country. With regard to the Affordable Care Act, government has not overstepped its boundaries, but acted appropriately.

Said the conservative dominated body, it is the sole responsibility of Washington to determine the nation’s immigration policy, as well as within its purview to effectively compel Americans to purchase health insurance using a tax.

Effectively compel, because the mandate is not a legal compulsion. According to Chief Justice Roberts, though the mandate is clearly “intended to induce the purchase of health insurance” it “need not be read to declare that failing to do so is unlawful” because “[n]either the Affordable Care Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring payment to the IRS.” Such payment is, of course, “a tax on those who go without insurance.”

If Madison is turning over in his grave, Hamilton is pleasantly amused.

Conservative spin
Conservative onlookers have labeled the administration’s success Pyrrhic. Most notably, George Will, the nation’s leading conservative columnist, has insisted that “[c]onservatives won a substantial victory Thursday” because the court “embrace[d] emphatic language rejecting the Commerce Clause rationale for penalizing the inactivity of not buying insurance”.

True, the court did embrace such language, but Will’s distinction is one of convenience. If, as was decided, what government can’t do under the auspices of the Commerce Clause -- or the Necessary and Proper Clause -- government can do using a broader and more legitimate ability to tax the public, liberals have gained (not lost) a plausible card to play when arguing constitutional legitimacy.

Pay no attention to the ground noise: What we have seen is the culmination of years -- if not decades -- of effort. SCOTUS has reaffirmed the federal government’s authority on immigration policy, and the Patient Protection and Affordable Care Act is now the law of the land.

It’s been a big week for big government. Here’s to November, which may give us a bigger week still.