Rank and file members of the tea party have no idea what the Constitution they purport to revere actually says. Don't believe this? Watch this damning video produced by Constitutional Accountability Center's Brooke Obie, who was at the Court with a video camera for oral arguments over the Patient Protection and Affordable Care Act (ACA), and get back to me.
The question is will the tea party win anyway? Progressives need to wrestle with this question as we await the Supreme Court's end-of-the-term rulings.
Back in the year 1900, political humorist and sketch artist Finley Peter Dunne spoke through his fictional character Mr. Dooley, saying that "the Supreme Court follows the election returns." Since at least that time there has been a great deal of discussion and focus upon the impact of public opinion on the Supreme Court's rulings.
We saw this in the run up to the ACA arguments. The media pored over polling showing that the Act itself was unpopular, and, even more strongly, that Americans believed the minimum coverage provision (aka the "individual mandate") was an unconstitutional exercise of congressional power. The numbers are indeed dire for supporters of the Act. According to a Gallup poll, Americans overwhelmingly (72 percent to 20 percent) think that the minimum coverage provision of the Affordable Care Act is unconstitutional, with even a majority of Democrats, and a majority of those who think the healthcare law is a good thing, opining negatively. Other polls show a much smaller gap, but this much is clear: if the Court wavers with winds of public opinion, the minimum coverage provision is in real trouble.
This has generated a lively debate about the role this polling will and should have on the Supreme Court's consideration of the challenges to the Act. While the Act's supporters (see this thoughtful piece by Barry Friedman and Dahlia Lithwick in Slate) and challengers (see this equally thoughtful response by Randy Barnett at the Volokh Conspiracy) agree that the Court should, in an ideal world, ignore this polling and decide the case purely on the legal merits, they also both recognize the reality that the Act's negative polling may provide "breathing room" for the Court's conservatives, who seem inclined to want to strike the Act down. Rightly or wrongly, there is a broad consensus that the Justices are at least attuned to public opinion when rendering their legal judgments.
That's why there is an important lesson for progressives in the ACA polling. As "The Tea Party vs. The Constitution: ObamaCare Edition" illustrates, there is an enormous gap between tea party activists' fervor about the Constitution and what is actually in our Nation's founding charter (for more on this, read CAC's Strange Brew: The Constitution According to the Tea Party). The problem with polling on the public's views about matters of constitutional law is that these views are more likely to be based on which side is screaming most loudly about the Constitution than what the Constitution says and appropriately means. But, if polling and public opinion matter in terms of Supreme Court decision making, then progressives ignore this public debate at our own peril. And, the truly atrocious poll numbers for the Affordable Care Act reflect the concerted effort by conservatives to attack the Act's constitutionality, while progressive leaders refused to take this threat seriously enough to make a compelling public case for why the Act falls squarely within the powers of Congress granted by the Constitution's text, as exercised at critical points throughout America's 220-year history.
The tea party has no idea what's in the Constitution, but that is all the more reason why progressives cede the text and history of the Constitution to tea partiers at our own risk.
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One Hundred Eleventh Congress of the United States of America
There is nothing in the Constitution about healthcare
Ben Franklin & Dr Thomas Bond raised PRIVATE money to start the first hospital in this country, in Pennsylvania in 1751 - " for the relief of the sick - poor - and for the reception and cure for lunaticks "
As Franklin was a founding father of this country - and this hospital was created prior to the writing of the Constitution - would it not be logical that if the fathers considered the government to be the provider of healthcare - it WOULD have been included in the radification of our Constitution .
BTW - that hospital is still in operation - a great product of ' Free Enterprise '.
It's not perfect but it is much better than "what we have now."
What is your stance on the Occupy movement?
It's about people who think that if there's any change to health care, they will suffer. That is, they are happy enough with the status quo, however absurd it is overall, and absolutely refuse to take any risk to make it better for all. So, again, like with so many human choices, it's about FEAR.
The truth is, fear is a great motivator, and the GOP peddles in fear. If this was a Bible story, the Devil would be, well, I think you know where I'm going with that...
If so, I think that's a keen observation.
Most of these guys aren't known for their reading comprehension. Thinking is too much work for them, so they'll usually allow some "trusted" authority figure to tell them what it means, and go with that.
Please show us plebes where it says you can create commerce. Also cite where it states that by being born you "enter into a market"....which of couse subjects you to regulation.
How do you get where you are with such blatant ignorance.
You might not like the discussion, but calling legal precendents "blatant ignorance" displays a lack of respect for our process.
Now you may want to try and argue that health insurance is not interstate commerce, but even the supreme's didn't try and make that argument to the solicitor general. As it is interstate commerce, the congress was well within it's enumerated powers to create this act.
If the republicans want to take this down, they should not have the disrespect of our system to pull the strings of their judges to tear apart our constitution more than they already have. They should be strong and run on repeal. If they win, then elections have consequences, if not, then they should be silent.
Moreover the taxing clause does not apply as it is not a "revenue raising" measure and the necessary and proper argument is way too boad.
People see the Constitution and read into it what they want. Just find the word "Privacy" in the document just once. Yet, how many people think it's there?
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
ObamaCare is unconstitutional not because the Constitution say you can't force citizens to buy health insurance, but because it's not one of the powers granted to the federal government. The people were right that all the meaning now associated with the commerce clause was added later on. It obviously was meant to only cover inter-state tariffs, quotas, etc.
Moreover, Congress has the power to "make all laws which shall be necessary and proper" to the carrying out of such regulation. (Note that the phrase is "make all laws...", not "make only those laws..." or "make no laws except..."; i.e., "Its terms purport to enlarge, not to diminish, the powers vested in the Government." McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 420 (1819).)
So, unless the regulation of the medical insurance market is not a regulation of interstate commerce, and the law requiring minimum coverage is not a reasonable means of carrying it out, then it -is- within Congress' enumerated powers. "[T]he sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution[.]" McCulloch, 17 U.S. at 421.