E.J. Dionne: We needn’t discuss whether a given idea violates the Constitution

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.

Robert Yates

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



  • Barbara

    Our foundes designated very specific powers to the federal government and all else is reserved to the states and to the people.

    Any reading of their well recorded deliberations when writing our constitution show they knew quite well the proclivity of governments and politicians to accumulate as much power as possible over every aspect of the lives of the governed.

    They strictly linited the powers of the federal government to prevent tyranny of excessive government regulation and control.

    Is Obamacare excessive govt control..you bet it is..as you will find out in 2014 when you go to your cardiologist with a 95% blockage and he sends you home with a pill instead of a life saving stent…compliments of Obamacare. Just ask any cardiologist. This is already dictated by HHS.

  • Braden

    Over here in reality, George Washington himself went about requiring Americans to buy things, and John Adams forced sailors to participate in a single-payer health care system. I wonder if they read the Constitution?

  • patback

    Of course the healthcare law does not violate the Constitution. We might not like that, but the Constitution says Congress has a right to levy taxes. What is absurd is that 4 justices somehow found that the healthcare law was unconstitutional, not only parts of it, but the entire 2,000 page law. It’s absurd, bordering on irresponsible, that they could have come to such a conclusion.

    • patback

      It’s hard to imagine how my comment could be voted down 66 times within 5 minutes of being published. This website gets less than 15,000 visitors in 2 weeks (as evidenced by the youtube counts from your landing page), so it’s impossible that 66 people could have even viewed the post. It’s almost as if someone is approving the comments and instantly voting them down so that they are concealed. Afraid of something?

      • Burning Bush

        Patback: I imagine it’s sorta like the thumbs down voter/moderator sees himself or herself doing the equivalent of several and then some rosaries. Look at it this way . . . it keeps ’em from writing more virulent commentaries or doing worse things. The earnest silliness of it, actually, is somewhat endearing in its own futile way.

      • teej

        You obviously haven’t started coming to this site until very recently. Even the most well thought out objection to an argument will suddenly find itself swarming in dislikes… if the objection doesn’t match what some around here consider orthodoxy. I am convinced that some people on here dislike and clear their cookies just so they can dislike it again…. and… and again. It can get pretty juvenile.

    • Stephen Kokx

      Hi patback, it seems that you didn’t read the essay. In no way did I comment on the case itself. I did point out that “there is disagreement over whether or not Roberts did the right thing” but the main point of my argument is that Yates was right. He accurately predicted that the the combination of Congress’ taxing power and the general welfare clause would lead to a highly centralized government. You, Braden and other commentators on this article chose to talk about the court’s decision in a highly partisan way instead of commenting on what I actually wrote about. Maybe that’s why you’re comments have been getting voted down.



Receive our updates via email.