The Supreme Court this week is hearing arguments about some specific, grave constitutional concerns about Obamacare: most prominently, whether the federal government has the power to order all Americans to purchase health insurance that meets the federal government’s standards. But it is worth taking a few steps back to remind ourselves that while this requirement is an unprecedented infringement on Americans’ liberty, the legislation as a whole — in its conception, not just its details — is an offense against constitutional government. As is much of modern government, and conservatives should not shrink from saying so.
The Constitution provides few and defined powers to the federal government, as James Madison put it. The precise scope of those powers has always been subject to debate, but that the description does not apply to today’s federal government cannot seriously be denied. The Constitution divides power among the branches of the federal government: But today’s government features countless agencies that combine executive, legislative, and judicial functions. The Constitution’s structure and logic militate against commingling state and federal powers. Today’s government includes vast state-federal spending programs in which the division of responsibility is blurred by design. These are not merely formal deviations from the constitutional template. They subvert its goals of liberty for citizens, accountability for governments, and security for property. What is needed today, then, is not so much the protection of constitutional government as its reclamation. The courts have an indispensable role to play in that project, but it will also necessarily involve shrewd and patient political action.
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