[Marxism] The Constitution and Social Progress

Louis Proyect 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

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 
political life.

American exceptionalism

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, 
London, 2001.


(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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