Tuesday, March 23, 2010

Is health-insurance reform unconstitutional?

That question is being answered in the affirmative by opponents of the law signed today by Pres. Obama. Conservative talk-radio is buzzing. Attorneys General in 14 states have announced their collective intent to undertake a legal challenge.

This particular batch of sausage (a.k.a. "legislation") was fugly, more so than usual, and both sides share the shame. National polls show considerable disapproval of the new law, most of it willful ignorance brought on by Republicans' disinformation blitz.

On its face, it doesn't seem quite right that our federal government will force individual citizens to buy health insurance, does it? States traditionally have regulated insurance, but now the feds seem to be horning-in on sovereignty. Entitlements? Don't get me started.

Back to the question: Is health-insurance reform unconstitutional?

We don't know. Nobody does -- yet. It's likely that nine citizens will answer for all of us.

Randy Barnett of The Washington Post
laid it out well:
"Ultimately, there are three ways to think about whether a law is constitutional: Does it conflict with what the Constitution says? Does it conflict with what the Supreme Court has said? Will five justices accept a particular argument?"
The original question is overly simplistic. Barnett's explanation is, by contrast, refreshingly simple. The next steps, over our opposition or advocacy, will be neither.

I hate to burst bubbles, but we don't live in a democracy -- we live in a representative republic with democratic moving parts. As such, we elect (democratically) our states' representatives, who make law. We elect (democratically, Electoral College notwithstanding) a President and Vice President. The President nominates justices to the Supreme Court, who (after confirmation by our representatives) decide what's constitutional and what's not.

That's the process. That's the way it works. It's why we awoke today to health-insurance reform as the law of the land and why we'll have no direct, democratic say on the question of its constitutionality.

We get the government we deserve. All contentions to the contrary -- well, now that's unconstitutional.