The Constitution

One of the right-wing talking points going around is that the individual mandate (more on that later) is unconstitutional. The left-wing counter point is something like this statement from Senator Reid:

Those of us who voted to proceed to the health reform bill and who voted for cloture on the substitute amendment take seriously our oath to support and defend the Constitution. And we have looked at this question seriously and concluded that the penalty is constitutional.

And those who study constitutional law as a line of work have drawn that same conclusion. Most legal scholars who have considered the question of a requirement for individuals to purchase health coverage argue forcefully that the requirement is within Congress’ power to regulate interstate commerce.

On the merits, I'm sure they're right. But this interstate commerce clause is really something. At the point when it's trying to carry Endangered Species Act and Health Reform--it's clear that something's wrong. The Founders clearly didn't intend this to be a general allowance for anything Congress can think up. They also didn't write a Constitution fit for modern governance. All of this raises the issue of why we pretend to care so much about the Constitution, when we are unwilling to let it be a serious hindrance.

Then there's the tricky business of whether the Constitution itself is constitutional--in the sense of fitting the laws of the government at the time, the Articles of Confederation. At the time, a number of wealthy landowners and merchants decided that they preferred a stronger government--a preference in accordance with their private commercial interests. As far as I can tell, the states did not have the authority to create a new government. On balance, I'd say history supports the point of view of the Framers. But it leaves me a little bewildered as to the actual content of what a Constitution means and what it should do.