Would the Founders Love ObamaCare?
THE RESISTANCE TO OBAMACARE IS ABOUT A LOT MORE THAN THE 10TH AMENDMENT.
The left-wing critics are right: The rage is not about health care. They are also right that similar complaints about big government were heard during the New Deal and the Great Society, and the sky didn't fall.
But what if this time the sky is falling—on them.
What if after more than a century of growth in the national government, starting with the Progressive Era, the American people are starting to push back. Not just the tea partiers or the 13 state attorneys general seeking protection under the 10th Amendment and the Commerce Clause. But something bigger than that.
Daniel Henninger discusses the widespread anxiety over the size of government.
The Democratic left, its pundits and academics criticizing the legal challenges to ObamaCare seem to be arguing that their version of our political structure is too big to change.
That's not true. The American people can and do change the nation's collective mind on the ordering of our political system. The civil rights years of the 1960s is the most well-known modern example. (The idea that resistance to Mr. Obama's health plan is rooted in racist resentment of equal rights is beyond the pale, even by current standards of political punditry.)
Powerful political forces suddenly seem to be in motion across the U.S. What they have in common is anxiety over what government has become in the first decade of the 21st century.
The tea party movement is getting the most attention because it is the most vulnerable to the standard tool kit of mockery and ridicule. It is more difficult to mock the legitimacy of Scott Brown's overthrow of the Kennedy legacy, the election results in Virginia and New Jersey, an economic discomfort that is both generalized and specific to the disintegration of state and federal fiscs, and indeed the array of state attorneys general who filed a constitutional complaint against the new health-care law. What's going on may be getting past the reach of mere mockery.
Constitutional professors quoted in the press and across the Web explain that much about the federal government's modern authority is "settled" law. Even so, many of these legal commentators are quite close to arguing that the national government's economic and political powers are now limitless and unfettered. I wonder if Justice Kennedy believes that.
Or as David Kopel asked on the Volokh Conspiracy blog: "Is the tax power infinite?"
In a country that holds elections, that question is both legal and political. The political issue rumbling toward both the Supreme Court and the electorate is whether Washington's size and power has finally grown beyond the comfort zone of the American people. That is what lies beneath the chatter about federalism and the 10th Amendment.
Liberals will argue that government today is doing good. But government now is also unprecedentedly large and unprecedentedly expensive. Even if every challenge to ObamaCare loses in court, these anxieties will last and keep coming back to the same question: Does the Democratic left think the national government's powers are infinite?
No one in the Obama White House, asked that in public on Sunday morning, would simply say yes, no matter that the evidence of this government's actions the past year indicate they do. In his "Today Show" interview this week, Mr. Obama with his characteristic empathy acknowledged there are "folks who have legitimate concerns . . . that the federal government may be taking on too much."
My reading of the American public is that they have moved past "concerns." Somewhere inside the programmatic details of ObamaCare and the methods that the president, Speaker Pelosi and Sen. Reid used to pass it, something went terribly wrong. Just as something has gone terribly wrong inside the governments of states like California, New York, New Jersey, Michigan and Massachusetts.
The 10th Amendment tumult does not mean anyone is going to secede. It doesn't mean "nullification" is coming back. We are not going to refight the Civil War or the Voting Rights Act. Richard Russell isn't rising from his Georgia grave.
It means that the current edition of the Democratic Party has disconnected itself from the average American's sense of political modesty. The party's members and theorists now defend expanding government authority with the same arrogance that brought Progressive Era reforms down upon untethered industrial interests.
In such times, this country has an honored tradition of changing direction. That time may be arriving.
Faced with corporate writedowns in response to the reality of Congress's new health plan, an apoplectic Congressman Henry Waxman commanded his economic vassals to appear before him in Washington.
Faced with a challenge to his vision last week, President Obama laughingly replied to these people: "Go for it."
As to the condescension and sniffing left-wing elitism this opposition seems to bring forth from Manhattan media castles, one must say it does recall another, earlier ancient regime