National healthcare and American constitutional culture.

AuthorMarshall, William P.
PositionAnnual Federalist Society National Student Symposium

There is no serious constitutional argument of which I am aware suggesting that the federal government cannot provide free healthcare to every individual in the United States. (1) Nor is there any sound constitutional claim that the United States could not raise taxes or find other sources of revenue to fund such a program. (2)

But as the public reaction to the passage of the Patient Protection and Affordable Care Act (PPACA) (3) makes clear, (4) the constitutional debate over national healthcare is more than a debate over the specifics of constitutional law. Rather it is debate grounded in constitutional culture--or what may be described as the non-legal traditions, narratives, and understandings that constitute our sense of American exceptionalism (5) and help define who we are as a nation and as a people. (6)

This Article addresses whether the creation of a national healthcare program would be consistent with American constitutional culture. Part I briefly expands upon the legal point that there is no constitutional barrier to the enactment of a national healthcare system. Part II.A then identifies and discusses the two aspects of our constitutional culture that militate against the adoption of national healthcare--our belief in rugged individualism and our distrust of government. As this Part notes, our national commitment to these narratives is deep and well-founded. But our national commitment to both of these aspects of our constitutional culture is necessarily measured. Neither the commitment to individualism nor to distrust of government is unlimited in scope; both are constrained by strong and compelling countervailing concerns. Part II.B then presents two equally fundamental aspects of our constitutional culture that support the adoption of a national healthcare system--our commitment to social mobility and our vision of the United States as a land of equal opportunity. This Article concludes that national healthcare fits well within our constitutional traditions and comports with the aspects of American exceptionalism that best define who we are as a nation.

One important caveat: This Article does not purport to address the specific constitutional claims that have been raised in relation to PPACA. Although I believe that PPACA is constitutional, (7) my comments are aimed at the provision of a system of national healthcare more generally.

  1. NATIONAL HEALTHCARE AND CONSTITUTIONAL DOCTRINE

    It is perhaps not surprising to learn that the passage of Social Security in the 1930s was met with many of the same heated criticisms now aimed at national healthcare. (8) Then, as now, opponents argued that enacting such a program would exceed the constitutional powers of the federal government. (9) Then, as now, opponents argued that the program was fundamentally inconsistent with the vision of limited government and individual freedom that was central to our constitutional foundations. (10) Then, as now, opponents frequently peppered their political rhetoric against Social Security with the claim that the program was akin to socialism. (11)

    Despite heated political opposition, the Social Security Act (SSA) (12) passed, but like the passage of the PPACA, statutory enactment did not end the controversy. The battle moved to the courts where opponents argued the SSA was unconstitutional. The challengers relied primarily on Article I of the Constitution, asserting that in enacting the SSA, the Congress exceeded its enumerated powers, and on the Tenth Amendment, arguing that the "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." (13) They did not succeed. The Supreme Court, in two major decisions issued on the same day--Helvering v. Davis (14) and Steward Machine Co. v. Davis (15)--found constitutional authority for Congress to create the Social Security program in the expansive wording of Article I, Section 8, Clause 1, which grants Congress the power to tax and spend for "the general Welfare of the United States." (16) The Court therefore ruled that the Social Security Act was constitutional. (17)

    The Court in Helvering and Steward Machine understood that its reading of the Taxing and Spending Clause might be controversial (18) and that the debate over the meaning of the Clause dated back to the time of the Framers. James Madison, for example, believed the Taxing and Spending Clause did no more than allow Congress to tax and spend in reference to its enumerated powers. (19) Alexander Hamilton, in contrast, asserted that the Clause provided Congress with independent authority. (20) The Court in Helvering and Steward Machine concluded, however, that by the time of the Social Security decisions, the issue had been resolved in favor of Hamilton's view. (21) Justice Story, writing in the early nineteenth century, had adopted Hamilton's position in his Commentaries (22) and the Court itself, relying in part on Justice Story's reasoning, had held in United States v. Butler that the broader Hamiltonian reading of the Taxing and Spending Clause was the correct one. (23)

    The only matter then remaining for the Court in Helvering and Steward Machine was whether the creation of a Social Security system comported with the requirement under the Taxing and Spending Clause that Congress act in furtherance of the "general welfare." The Court held that the judgment of what is for the general welfare was a matter for Congress and not the courts to decide. Accordingly, it concluded that it would defer to Congress on this issue "unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment." (24) Additionally, despite ruling that it need not provide justifications supporting Congress's decision to create a Social Security system, the Court offered one anyway:

    The purge of nation-wide calamity that began in 1929 has taught us many lessons. Not the least is the solidarity of interests that may once have seemed to be divided. Unemployment spreads from state to state, the hinterland now settled that in pioneer days gave an avenue of escape. Spreading from state to state, unemployment is an ill not particular but general, which may be checked, if Congress so determines, by the resources of the nation. If this can have been doubtful until now, our ruling today in the case of the Steward Machine Co. has set the doubt at rest. But the ill is all one or at least not greatly different whether men are thrown out of work because there is no longer work to do or because the disabilities of age make them incapable of doing it. Rescue becomes necessary irrespective of the cause. The hope behind this statute is to save men and women from the rigors of the poor house as well as from the haunting fear that such a lot awaits them when journey's end is near. (25) The Social Security cases and their antecedent authorities thus provide little doubt that a national healthcare program would survive constitutional scrutiny under current doctrine. If Congress has the authority to tax and spend to provide cash payments to individual citizens, it would also have the authority to provide healthcare. This is not to say that a national healthcare program might not raise substantial constitutional issues in the manner in which it is designed or in the specifics of its requirements. Those currently challenging the constitutionality of PPACA, for example, are specifically claiming that PPACA's individual mandate provisions violate the Commerce Clause. (26) But even if the plaintiffs succeed in their Commerce Clause challenge, the result would only be that the individual mandate would be found unconstitutional. (27) The conclusion would not be that the federal government could not have constitutionally created a national healthcare program by other means. (28)

    Similarly, a hypothetical national healthcare program could potentially impose specific requirements that might violate individual rights. A healthcare program that prevented persons from seeking certain types of medical treatment or independently paying for their own healthcare services might run afoul of constitutional limitations. (29) But even if the government were to impose such requirements, only the provisions violating individual rights would be invalid; the basic provision of healthcare by the federal government would remain untouched. (30)

  2. NATIONAL HEALTHCARE AND CONSTITUTIONAL CULTURE

    Even though a national healthcare program would be legally constitutional in the sense of not violating any specific formal constitutional requirement, it might not still be consistent with our constitutional traditions or constitutional culture. (31) This Part will explore that possibility. To proceed, however, we first need to develop some sense of what we mean by "constitutional culture" in this setting as constitutional culture is a term that can hold a variety of meanings. (32) Consider, for example, the difference in the meanings of the term "constitutional culture" in the two opinions in which a Supreme Court Justice has actually employed the term. In Lucas v. South Carolina Coastal Council, (33) Justice Scalia used the term to find a constitutional prohibition against so-called "regulatory takings" or takings in which the government does not seize an owner's property but rather deprives the land of any economically beneficial use by imposing regulatory restrictions on its use. (34) Based upon his understanding of what constitutional culture entailed, Justice Scalia then concluded that an anti-erosion measure that prevented a landowner from building on his property was unconstitutional because it rendered the owner's land valueless without compensation. (35) For Justice Scalia, principles derived from constitutional culture can have actual legal force. (36)

    Chief Justice Rehnquist, in Planned Parenthood of Southeastern Pennsylvania v. Casey, (37) however, used...

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