The Spectacle Blog

The Seed of Constitutionalism Planted

By on 2.3.11 | 2:21PM

Jonathan Cohn thinks that conservatives' doubts about the constitutionalism of Obamacare's individual mandate are rooted in dishonesty, because if they really believe what they are saying they should also think Medicare is unconstitutional:

What I don't understand is how these people can, on the one hand, reject enactment of the Affordable Care Act and, on the other hand, accept the existence of a program like Medicare. That is precisely what many of them argue and what Judge Roger Vinson stated in his opinion this week.


Of course, these mandate critics know the public won't entertain moral objections to Medicare any more than the courts will entertain constitutional ones. It's settled law and, for the most part, settled policy.

Of course this could be an argument for the constitutionality of Obamacare or against the constitutionality of Medicare. 

Note the progression of liberal thought on this subject: it's fair to say that when the law was being devised the mainstream liberal attitude was total unconcern for the question of its constitutionality. The best example of this mindset is probably then-Speaker Nancy Pelosi's response of "Are you serious? Are you serious?" to a reporter's question about the law's constitutionality. Then, when right-wingers initiated legal challenges immediately following the law's passage, the liberal response was derision. In particular, Virginia attorney general Ken Cuccinelli became the butt of left-wing jokes for his lawsuit against Obamacare...right up until it succeeded in a federal district court.

Now that the legal case against the individual mandate has gained momentum, Cohn is broaching, at least indirectly, the question of Medicare's constitutionality. Without going into the Constitutional questions about Medicare and Obamacare, notice that at each stage the liberal response to the legal challenges has not been to justify the legal basis for Obamacare, but in fact to avoid addressing it altogether. So Cohn appeals to the public approval of Medicare not to reflect on Medicare's status under the Constitution, but to try to head off further arguments. After all, who would want to have to consider whether one of our biggest social programs is in accord with our founding documents? Who wants to worry about whether the laws of the land have any bearing on what the government does? Let's just go about our business and not get wrapped up in it. 

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