The "Atmospherics" Around Constitutionalism & The Healthcare Law

By Richael Faithful

On Wednesday the House of Representatives will vote on H.R. 2, the "Repealing the Job-Killing Health Care Law Act," otherwise known as the Republican bill to repeal the health care law (Affordable Care Act). Throngs of legal scholars have defended the health care law's constitutionality--including over 100 professors who have recently signed the American Constitution Society's statement to that effect. Simply put, leading constitutional thinkers have reached a consensus that the federal government's authority exercised through the healthcare law is "unambiguous." So, if the people who think and breath the Constitution, from the ideological left and right, have no question about the law, why the fuss?

The fuss boils down to what some are describing as "radical constitutionalism" by certain political communities and constituents, namely the so-called Tea Party Movement. I use the less generous and sound-bite worthy term "selective constitutional literalism." The reason that some of the public is ignoring the constitutional experts is because they deeply believe in literal constitutional interpretation in which a person can read and point to a specific clause to refute or bolster broad claims about the law or their own rights. From this perspective all matters of law and policy are simple matters; the health care law's health care mandate provision is unconstitutional because there is no express constitutional language about the federal government's authority to require health care coverage. Why is Big Government trying to make me buy their insurance? Isn't it my right to do what I want with my money? My health is my own business, not theirs. End of story.

In reality, the health care law is really the beginning of a very interesting and important conversation not about its constitutionality, but on its opponents' socio-legal philosophy, as framed by Tom Ashbrook's On Point show, "Congress & Constitutional Arguments." Here, two constitutional scholars, a law/politics reporter, and the host illuminate that public backlash against the health care law, based on supposed constitutional principles, is little more than an isolated and selective reading of the Constitution, one which is frozen in a revisionist 1787 history.

The discussion highlighted two important points: 1) the Constitution must be read and understood in its entirety of have any coherent meaning; 2) it is fundamentally a pro-tax document which expressly invested the federal government with expanded powers over time via the Amendments; and 3) popular constitutional literalist movements are usually driven by "atmospherics" such as political and cultural skepticism of constitutional authorities (i.e. the country's first Black President, Barack Obama). The most disturbing fact is that the so-called Tea Party Movement reflects a widely-held belief that the Constitution is a literal, static, and ahistorical source of law, much like The Bible. In other words, Americans just don't get the Constitution, despite our democratic obligation as a free people to govern through it.

Most Congress watchers doubt that the repeal bill will go far, as it is expected to die in the Senate. Predictions are about the same for the law in courts, even though the issue may reach the highest court. But perhaps the most significant outcome of this debate is whether constitutional illiteracy will become real, and in effect, kill one of the most significant legislative measures of this century.