Why Health Care Reform is Constitutional

An adoption of Madison’s approach at this late date is also unreasonable. Under his approach, I doubt the federal government could have acquired land for national parks. I doubt it could have constructed interstate highways, helped fund airports, or built many of our other national infrastructure projects. Medicare and Social Security would certainly be unconstitutional. I doubt the federal government could have funded research for the Internet. Federal support for disaster relief and federal unemployment benefits would also probably be unconstitutional. The rightr may favor Madison’s interpretation, but it would have resulted in a radically different history of our country, and a radically different future as well.

Congress can also rely on the Commerce Clause for its proposed plans. That clause (Article I, Section 8, Para. 3) of course, lets Congress pass laws to regulate interstate commerce, and is a completely independent congressional power. My hypothetical legislation concerns the purchase and sale of health insurance, which is obviously commerce. Given the size of insurance companies among other things, this commerce is clearly interstate. Again, one can reasonably argue that proposed legislation is a bad idea. The argument that it automatically lies beyond the Constitutional powers of Congress to address, however, is incorrect if one simply uses a straightforward interpretation of the words “interstate commerce.”

Ms. Price claimed in her Commentary that the original intent of the Commerce Clause was much narrower, and that it was intended “to keep states from charging each other tariffs.” That formulation, however, is so incomplete as to be incorrect. As Justice Marshall noted in the famous case of Gibbons v. Ogden, 22 U.S. 9 (1824), the Commerce Clause allows the regulation of all “commercial intercourse,” including things like navigation and transport. Had the drafters of the Constitution really wanted to limit the Commerce Clause to eliminating interstate tariffs, they likely would have written it that way.

Nor is the question of Congressional authority to regulate health care aided by a discussion of “fairness” and “rights.” These are legitimate questions to raise, and should be part of the health care debate. In general, the question of whether and/or how much the “haves” should subsidize the “have nots” is an important question. As to the issue at hand, however, it goes to the question of whether Congress should act. It is wholly separate from the question of whether Congress can act under the Constitution. As I explained above, the answer to that latter question is undoubtedly yes.

At its core, the issue of Congressional authority rests on how the Constitution should be interpreted. Many on the right, including Ms. Price, wish to rely on an extremely narrow reading of the Constitution, that usually focuses on “original intent.” Unfortunately, the Constitution did not come annotated. The drafters certainly did not give us a guide to the Constitution’s interpretation, much less one that says “use our original intent, and only our original intent.” Indeed, I suspect the drafters would be shocked to learn their Constitution is still operative after 220 years. The drafters also were not unanimous in how they themselves interpreted the words they chose; the Madison/Hamilton debate on the “general Welfare” clause establishes that clearly enough. In cases where there was not a single interpretation by the drafters, one cannot divine “original meaning.” If we are to strictly adhere to “original meaning,” moreover, we need to know what was in the minds of the voters that ratified the Constitution. We have no way to establish that. Finally, our society is radically different from what it was in 1789, when slavery still existed, women had no right to vote, the study of electricity was in its infancy, and life was radically different from today. How can we possibly know what our founders would have thought regarding the proposed health insurance reform given our current society, much less whether any particular position would have been a majority opinion of those founders?

The best we can do is interpret and apply the words the founders gave us. While original intent is important and should be followed where it gives us an answer, those cases are rare. Interpretations of “general Welfare” and “regulating interstate Commerce” also easily support the idea that Congress can regulate health care insurance.