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Politics Foreign Affairs Culture Fellows Program

Situational Constitutionalists

Americans have witnessed, in the last days, an ugly and extraordinary display of how the practice of democracy can so often overwhelm its theory: They saw, first, how those who claim an exalted moral stature for health-care reform made a naked attempt to dodge a basic constitutional requirement for the passing of a bill. The […]

Americans have witnessed, in the last days, an ugly and extraordinary display of how the practice of democracy can so often overwhelm its theory: They saw, first, how those who claim an exalted moral stature for health-care reform made a naked attempt to dodge a basic constitutional requirement for the passing of a bill. The subversion of the Constitution was abandoned when it became clear that the Supreme Court would not put up with a law that had been “deemed” to have passed. ~Tunku Varadarajan

I do love it when conventional conservatives and Republicans become outraged by the unconstitutionality of something. In recent years, it has become so rare that I had almost forgotten what it looked like. As with most people’s concerns on this score, their constitutional concerns are almost entirely conditional and situational. I distinctly remember when Republican members of the Senate wanted people to believe that filibustering judicial nominees was unconstitutional, when the filibuster is a rule set up by the Senate and for Senate as the Constitution empowers the Senate to do. Now that they are in the minority and desperately cling to their ability to filibuster, we don’t hear about the evils of the filibuster any more.

As I understand it, “deem and pass” was perfectly legal in the past, much to the consternation of the Democrats when they were in the minority, and it is only in approximately the last 14 months that it has become an unconstitutional affront to all right-thinking people. In the end, it was not any threat of the legislation being overturned by the Court that prevented the majority from pursuing this tactic. As it happened, they did not need the parliamentary trick to pass the bill. Now what you have is a bill passed by a clear majority of the House, whose members were elected by a majority of the people in the previous election partly on the promise that those members would pass health care legislation during this Congress. This is supposed to be a display of ugly practice overwhelming pristine theory? Of all the arguments against health care legislation, the weakest and most easily refuted has always been that this is not what the majority of the people wanted. What the majority wants may be a terrible idea, what the majority wants may not be constitutional, but it is beyond silly to insist that the majority did not want it and actually cannot wait to get rid of it.

It is even more amusing when these new champions of the Constitution also wrap themselves in the mantle of the people’s tribune. Of course, democracy, even indirect democracy, does not necessarily produce good or constitutional legislation. I assume Varadarajan was equally put out in 2003 when he saw “the legislative souk at its most squalid” during the passage of Medicare Part D. It would be quite shocking if that were not the case! All things considered, I think opposing the bill was the correct thing to do, but as we are probably going to find out it was not actually the popular thing to do. Having lost the last two elections to the party that favors health care legislation, Republicans are in an awfully odd position when they claim that the vote yesterday represented a perversion or distortion of democracy. For good or ill (and I think mostly ill), the American public will likely now receive some significant part of what they voted for, whether or not they fully understand the implications. Elections do have consequences, and this bill is one of them. I hope all the Iraq war supporters on the right are pleased with what they have wrought. These Democratic majorities and the Obama Presidency would have been inconceivable had the previous administration not taken the country to war in Iraq and destroyed their party in the process.

Often enough, when people use the word unconstitutional they really mean that something is inconvenient, unwelcome, annoying or otherwise objectionable. The federal government does any number of things it is not empowered to do by the Constitution. I should think this is obvious. It exceeds the limits that were put on it on a regular basis in dozens of ways every day. This is why Ron Paul votes against pretty much everything that comes up for a vote in the House. The constitutionality of legislation is something that he takes seriously in every case, which is why he casts so many nays on the losing side of lopsided votes. Both major parties are filled with people who ignore unconstitutional government powers when they serve the constituencies and interests that back their party, and they become deeply offended when the other party’s constituencies and interests are being served in the same way.

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