Since the Supreme Court ruled 5-4 in favor of the constitutionality of the president’s health care plan, conservatives have been alternatively angry and despondent. To many observers, this reaction may appear to have its roots in hatred of the president, racism, an inability to understand the constitution, a lack of compassion, or excessive partisanship. None of those reasons explain the depth of the feelings of protest that exist and appear to be building.
The United States constitution sets out a unique form of government. In the wake of revolution, the former British colonies became classic states with inherent power to govern with the consent of the people. The United States of America emerged in the form we know as a new and special type of entity. This national government would only have certain powers the states deemed necessary. Thus, this national government would be a limited government of delegated powers. This distinction helps explain why it has been uncontroversial for the states to require people to buy auto insurance, while it is a very big deal to see the national government attempting to act in the same way. The United States government is acting as though it is a government of inherent powers rather than one of delegated powers.
Now, for many people this transformation of the national government from limited to omni-capable makes perfect sense. In the modern age, they believe, a central government must have wide authority to act. It must be able to tackle big problems. Conservatives, they charge, are attached to an antiquated system.
But conservatives do not approve the federal system merely because it is old. There are older systems. Power under one head is older. Conservatives approve the system of states with broad power to govern and a central government with limited, delegated powers because it guarantees that most of the laws one lives under will be laws enacted close to home. Under a truly federal system, government is predominantly local. People who live in our states and in our communities should be the ones to work out the laws under which we live because of their familiarity with our local strengths, resources, traditions, threats, and challenges.
People may be surprised to hear the news that Justice Kennedy worked unceasingly for a month to try to keep Justice Roberts from siding with the liberals, but his position on the case should not have been a surprise. Justice Kennedy has written clearly about his admiration for federalism as the great American contribution to governing. When he has gone against it, it has been to protect personal liberties he deemed of vital importance. In this case, the question was whether we would continue to have a truly federal system. It was perfectly in character for him to try to maintain our special contribution.
For decades, conservatives have waited to see the Supreme Court cut back on the broad license of power granted to the central government as part of the New Deal (under the threat of court-packing). There have been signs that power was being cut back (such as the Lopez decision in 1995). We believed this case would finally end the ultra-expansive view of the commerce power and would restore a sense of limits to the central government’s power. Our hopes were sharply disappointed because the court ruled that we were correct about the commerce power, but then extended the power of the United States government through a broad construction of its power to tax. If this power to tax is as broad as the court says it is, then it is difficult to see where the reach of the central government ends.
From the conservative viewpoint, we have lost federalism. Most people don’t know what federalism is and don’t care. But we do. The loss of government close to home is a great loss, indeed. It means the individual is more at the mercy of the mass than ever. It also means that the best means of limiting the power of the central government is gone.
Every American student of civics is taught that the constitution has checks and balances in which the legislative, executive, and judicial branches rein each other in. What they have learned too rarely is that the best limit on the power of national governments is for some powers not to be granted to them at all. Article I, Section 8 of the constitution lists out the powers of the United States government. That was once a clear guide to what the government could and could not do. After the court’s ruling, one wonders why the framers of the document felt the need to include a list at all as it is apparently superfluous.