Health care and the Founding Fathers

Posted: July 06, 2012

It's appropriate that our Fourth of July celebrations coincided with a moment when the Supreme Court's health-care decision prompted intense debate over the purpose of our government and what the Constitution allows it to do. We are a more philosophical people than we give ourselves credit for. Constitutional questions enter the political conversation here more than in most countries because our diverse nation is bound by our founding principles, not by blood or ethnicity.

The biggest advantages of this are our openness and tendency to argue on the basis of high principles. The biggest disadvantage is that differences over policy are often disguised as differences over whether a preferred choice is constitutional. When we should be addressing pragmatic questions — Will this work? — we fall back on abstract discussions of whether an idea violates the Constitution.

It's not a new habit. When Treasury Secretary Alexander Hamilton proposed a Bank of the United States in 1790, his idea was strongly opposed by James Madison, his partner in writing the Constitution. Madison didn't just say he was against the bank. Setting a pattern, he insisted that it was unconstitutional.

Those who claim we can be so certain of the original intentions of the founders should take note: If two of the original authors of the Constitution came to such a stark disagreement so quickly, what exactly does originalism mean?

It is dangerous to turn the founders into prophets who produced a text like the Bible or the Talmud. It's neither. It is a governing document that was the product of compromises and arguments. "Historians today can recognize the extraordinary character of the Founding Fathers" while acknowledging that they had "no special divine insight into politics" and were "as enmeshed in historical circumstances as we are," wrote Gordon Wood, one of the premier contemporary scholars of the founding era.

We do a disservice to ourselves and the founders if we take them out of history and demand that they settle arguments that we ought to settle. They, after all, were not timid men bound by the past. They did something bold and adventurous.

Recently, University of Texas law professor Sanford Levinson directed me to Madison's lovely words in Federalist No. 14: "Is it not the glory of the people of America that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience?"

The founders would no doubt be gratified that we still care so passionately about their work. But they might be surprised to learn how much of our health-care debate focused on a careful parsing of the Constitution's clauses on regulating commerce and levying taxes to solve a problem that was unknown to them. We would be truer to their spirit if we followed Madison in having more confidence in our own good sense and knowledge of our situation.

The genius of the founders is that they created a government designed to act, and so I'd propose a new patriotic ritual involving an annual reading of the preamble to our Constitution. Its first word is we, and its purposes include establishing justice and promoting the general welfare. Before we expend enormous energy deciding how many angels can dance on the head of the Commerce Clause, we should keep in mind the broader objectives of our great experiment.

E.J. Dionne writes for the Washington Post.

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