In writing about the Supreme Court’s decision to uphold certain provisions of President Obama’s healthcare law, Catholic columnist E.J. Dionne claims that
The Founders would no doubt be gratified that we still care so passionately about their work. But they might be quite surprised to learn how much of our health-care debate focused on a careful parsing of what the Constitution’s clauses on regulating commerce and levying taxes allowed us to do to solve a problem that would have been unknown to them.
He goes on to add that “the genius of the Founders is that they created a government designed to act.” Therefore, instead of falling back on “rather abstract discussions of whether a given idea violates the Constitution,” we should be addressing pragmatic questions like “will this approach work?” or “will it solve the problem it’s designed to solve?”
Dionne’s suggestion that the Founders would be “surprised” at our parsing of the words they included in the Constitution is, well, surprising. He should know that the Founders were meticulous in their choice of words; that’s why they let Thomas Jefferson write the Declaration of Independence and James Madison draft the Constitution. They knew that if they published poorly crafted documents, clumsily communicated their views, or failed to articulate what powers the government actually possessed, there would be catastrophic consequences.
Dionne’s insinuation that the Founders would have simply glossed over the use of Congress’ taxing power is also disturbing. As every student of history knows, the decision to grant Congress the power to levy taxes was an enormous point of disagreement between the Federalists and Anti-Federalists. In fact, Anti-Federalists like New York Supreme Court justice Robert Yates claimed that Congress’ power to tax would result in a total “destruction of state government.”
In his eyes, Congress’ taxing power had no limit: “It is absurd to say,” Yates wrote, “that the power of Congress is limited by these general expressions, ‘to provide for the common safety,’ and ‘general welfare.’” If these are the limiting clauses, then “the government would always say their measures were designed and calculated to promote the public good.”
He later warned that the power to tax in the name of providing for the general welfare would endanger “the personal rights of the citizens of the states, expose their property to fines and confiscation, and put their lives in jeopardy.”
Yates’ words should serve as a timely reminder about how we have evolved as a nation. Indeed, the decision of Chief Justice John Roberts to uphold the president’s healthcare mandate seems to validate Yates’ warning about centralized government.
Though there is disagreement over whether or not Roberts did the right thing, no one can deny that when asked by Justice Samuel Alito about a limiting principle to the government’s ability to tax its citizens, Solicitor General Donald Verrilli failed to provide a clear response.
And neither can Dionne.
That is why he prefers to avoid “abstract discussions of whether a given idea violates the Constitution.” He knows that his arguments cannot be easily found in the document itself.
Somewhere, Robert Yates is smiling and saying “I told you so.”
Stephen Kokx is an adjunct professor of political science and featured columnist at RenewAmerica.com. Follow him on twitter @StephenKokx