[Marxism] The Constitution and Social Progress
lnp3 at panix.com
Tue Jun 12 11:06:03 MDT 2012
(Daniel Lazare is first-rate.)
Counterpunch June 12, 2012
The Constitution and Social Progress
History Judges Health Care
by DANIEL LAZARE
The healthcare programme that President Barack Obama manoeuvred
through Congress in 2010 is a political compromise that may not
much reduce medical costs or alleviate a worsening health crisis.
It still provoked angry backlash as Tea Party members accused the
president of establishing “death panels” to decide who should live
and die among the sick and old, and Republican presidential
candidates vowed to kill the programme the moment they took office.
Obamacare has to go before a conservative-dominated Supreme Court
for constitutional review. A decision is not expected until late
June. But hostile comments during three days of hearings in March
made liberals fear that Chief Justice John Roberts would disallow
the plan’s most controversial feature, a requirement that families
pay annually for private health insurance or face a substantial
penalty to the federal government.
Instead of a clear and simple single-payer system, the senators
opted for a scheme that was complicated, introduced through the
Patient Protection and Affordable Care Act of 30 March 2010. It
calls on each state to set up separate “health insurance
exchanges” in which private insurance companies would advertise
and compete for business, rewarding those companies with 32
million extra customers, many federally subsidised. Unless covered
by public programmes such as Medicare or Medicaid or by their
employers, a family of four will have to spend up to $8,400 a year
for medical insurance or pay a penalty of more than $2,000.
Obama’s health plan leaves 23 million people uninsured, most of
them undocumented immigrants, and gives conservative-dominated
state governments wide leeway to restrict coverage (women would
have to purchase separate coverage for abortions). Insurance
companies will benefit from $447bn in taxpayer subsidies, yet will
still be free to raise prices. Don McCanne, senior health policy
fellow at Physicians for a National Health Program (PNHP), sums it
up as “unaffordable under-insurance” (1). Still, Obamacare
provides cover to 32 million people who could not otherwise afford
it and forbids denying insurance to those with pre-existing
conditions (illnesses expensive and unprofitable to treat),
although there are loopholes.
If the Supreme Court decides to challenge the plan head on, the
consequences will be serious. Congressional Democrats will be
paralysed for fear of rightwing judges on the warpath. “If the
Supreme Court can get away with striking down core economic
legislation, the left is screwed for a generation,” says Nathan
Newman, a lawyer, journalist and former union organiser. “Between
GOP filibusters and a Supreme Court willing to strike down
anything that gets through Congress, striking down Obamacare will
be a signal for corporate America to run riot and expect no
significant regulation to restrain it.” The incompatibility
between the constitution and social progress will depress American
To understand this, it is necessary to understand the US’s strange
political system. American exceptionalism has been much mentioned
during the current presidential campaign. (The term was coined by
Communist Party members in the 1920s who argued that the US was so
economically powerful as to be exempt from the laws of capitalism.
Not exempt from the 1929 crash, however.) It has been appropriated
by Republicans to describe a society incapable of doing wrong
because it has been blessed by God. The US is exceptional in one,
non-divine, respect: while other western democracies have
repeatedly revamped their governing systems after war and
revolution, the US has had the same plan of government since 1787.
This is a source of immense pride for Americans, yet the results
are calamitous. The government that the constitution decreed is
corrupt, frozen and racist. The House of Representatives is not
undemocratic, but the Senate is the most lopsided major
legislative body on earth, with the possible exception of
Britain’s House of Lords (which is largely ceremonial). Organised
on the basis of equal state representation, it grants the same
number of votes to Wyoming as it does to California even though
California’s population is 68 times greater. Since Senate rules
require a majority of 60% for any measure to pass, just 41
senators, representing perhaps 12-13% of the total population, can
veto any measure introduced by either house.
When voters complain, senators and representatives say there is
nothing they can do because a do-nothing Congress is what the
founding fathers (the small group of lawyers, merchants and
slave-owners who created the constitution) wanted. “Listen, the
founders gave us a committee of 535 people,” John Boehner from
southern Ohio, who commands the House’s Republican majority, said
last November. “Frankly, it was designed not to work. My job is to
make it work. And it is working. Is it slow? Yes. Is it
frustrating? Yes.” That month, Congress’s approval rating sank to
9%, which, as a Democrat pointed out, was six points less than the
approval rating for reality star Paris Hilton (2).
The healthcare plan reflects this deliberate dysfunctionality. It
was designed not by the White House but by six senators — three
Democrats and three Republicans — some from Montana, North Dakota
and Wyoming, vast western expanses where there are more cows than
people. If the Supreme Court’s five Republican judges (against
four Democrats) decide to overrule it, it will be because it
exceeds the dispositions defined in section 8 of article 1, which
gives Congress the prerogative “to regulate commerce with foreign
Nations, and among the several States”.
In 1787, the aim of this clause seemed clear. To forge the young
North American federation, Congress needed powers to prevent the
13 member states from turning themselves into miniature commercial
powers in conflict with each other. After the New Deal in the
1930s, this clause served to control all activity which could
affect the national economy — in 1942 the Supreme Court gave
Washington carte blanche to regulate milk sales in one state,
because of their impact on milk commerce in neighbouring states.
The Court also authorised the federal government to fix the amount
of wheat that an Ohio farmer could grow for his own consumption,
on the grounds that it could affect the cereal market in general.
In 1964, the Court gave Washington the right to forbid
discrimination in an Atlanta motel, on the grounds that it could
welcome travellers from another state.
There is no question that the $2.5-trillion healthcare industry
qualifies as interstate trade. But the issue before the Supreme
Court is whether Washington can compel individuals to purchase
insurance. While the federal government can regulate economic
acts, can it regulate a non-act, a decision not to purchase
coverage? What would the founding fathers have thought? Politics
becomes an exercise to show that modern policy is consistent with
principles laid down in 1787 — as if François Hollande’s
government had to demonstrate that everything it did would meet
with the approval of Louis XVI. Rather than a democracy, the US is
a “mortocracy”, a government of, by and for the dead.
Obama has appointed two well-known liberals, Sonia Sotomayor in
2009 and Elena Kagan in 2010. But since both of them replaced
liberals, the political effect has been nil. He has had to stand
by as the Court has issued rightwing rulings. In June 2009, the
Court ruled that prisoners had no right to DNA testing that might
prove their innocence. In January 2010, it ordered the lifting of
restrictions on corporate campaign contributions (3) — a decision
that has allowed wealthy men such as Sheldon Adelson of Las Vegas
to spend millions on behalf of his favourite rightwing candidate,
Newt Gingrich. Most recently, it ruled that local police can
strip-search citizens arrested for driving with a noisy muffler,
failing to use a turn signal, riding a bicycle without an audible
bell or walking a dog without a leash.
The last liberal president who tried to challenge the Supreme
Court was Franklin D Roosevelt. In January 1937, Democrat
congressmen cheered when, in a swipe at judges who had struck down
New Deal measures, he declared that the problem was not the
constitution but a conservative interpretation of it. “Rightly
considered, [the constitution] can be used as an instrument of
progress, and not as a device for prevention of action” (4). It
was FDR at his most Machiavellian: knowing that the constitution
was the issue, he had earlier discussed with his aides the
possibility of a constitutional amendment giving Congress the
power to override the Supreme Court. But since changing the
constitution is virtually impossible, he chose instead to attack
judicial conservatives by packing the court with liberal appointees.
FDR lost the battle but won the war when “the Supremes” (judges)
soon began approving New Deal bills no different from those they
had previously rejected. Democrats reversed course as well. Where
they had once excoriated judicial review, they now pledged undying
fealty to a Supreme Court that, from the 1950s, overturned school
segregation, prohibited school prayer, legalised birth control and
abortion, and struck down laws including those prohibiting
pornography and homosexuality.
But with the Court moving further to the right, liberals are at a
loss. If the court strikes down Obamacare, they will be where
Roosevelt was in 1937. Obama, a former professor of constitutional
law, has never uttered a word against Washington’s governing
institutions. While he may disagree with the court’s
interpretations, he regards judicial review, and the elevated
place it occupies in the American political system, as beyond
criticism. All he can do is pray the Court leaves some of his
health plan intact.
Daniel Lazare is author of The Velvet Coup: the Constitution, the
Supreme Court, and the Decline of American Democracy, Verso,
(1) “Health reform devolves into ‘unaffordable under-insurance’”,
9 December 2011.
(2) Chris Cillizza, “Congress’ approval problem in one chart”, 15
(3) See Robert McChesney and John Nichols, “US democracy sold
out”, Le Monde diplomatique,English edition, September 2011.
(4) Jeff Shesol, Supreme Power: Franklin Roosevelt vs the Supreme
Court, WW Norton, London/New York, 2010.
This article appears in the excellent Le Monde Diplomatique, whose
English language edition can be found at mondediplo.com. This full
text appears by agreement with Le Monde Diplomatique. CounterPunch
features two or three articles from LMD every month.
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