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Is Social Security Unconstitutional?

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If the Supreme Court holds that the Affordable Care Act's individual mandate, which requires every American adult to purchase health insurance or pay a fine, is unconstitutional, why could not Social Security be next? After all, it requires nearly every American to purchase retirement coverage? What about Medicare, which requires every working adult to purchase old age medical insurance?

The constitutionality of both of these federal mandates is not being challenged, even by most in the Tea Party. Nor have we heard charges that Social Security is a takeover of private pension care or Medicare a takeover of private health care. No one is claiming that Social Security takes away your choice of pension options or that Medicare takes away your choice of doctors. To the contrary, the great majority of Americans do not want anyone messing with these federal mandates.

What is going on here? Social Security was enacted in the wake of the Great Depression, when Americans saw firsthand the ravages of losing income and being left in old age with no means of sustenance. Medicare was passed in 1965, when we realized that one of every two older Americans had no health insurance and could not find or afford to get it. In 1972, Congress added coverage for younger people with disabilities and those with end-stage renal disease. The Affordable Care Act was passed in 2010, when we realized that over 40 million Americans lacked health insurance (a number that kept rising) and many could not get it at any price. But it is only this law that may be declared unconstitutional.

Keeping in mind that both Social Security and Medicare require you to pay even if you are healthy -- and even if it may be half a century or more before you can get any benefits -- why is there no constitutional challenge to these laws? Why do we still accept, even protect and expand (prescription drug coverage was added to Medicare in 2003) them today?

What has changed that nearly everyone accepts these social insurance programs but we find so much opposition to the Affordable Care Act, another social insurance program?

Perhaps American values have changed. In the past, we chose to sacrifice some of our wealth to help others and, ultimately, ourselves as we aged. We chose to sacrifice to help those in poverty because a wealthy nation does not allow its poor to suffer. We chose in those landmarks pieces of social legislation to value community over individualism. We gave up some liberty for the sake of the common good. We also chose to focus on our long-term needs rather than our short-term pocketbooks. We agreed to tax ourselves. Individualism did not go away, nor did liberty or short-term thinking. But in the scale of values, we gave up some of each for something beyond ourselves. We delayed our own gratification to help those less fortunate now.

Today, perhaps, individualism, liberty and a short-term financial mindset are trumping community. We don't want to give up as much (or any more) for others -- or even for ourselves (we will almost all need these benefits at some point in our lives). Even when we talk about the skyrocketing costs of Social Security and Medicare, we seem determined to prevent them being fixed at our own expense.

The Affordable Care Act may be declared unconstitutional, but the reason may have more to do with our values than the Constitution. If that happens, we will still be faced with how to fix the health care system in this nation. We will confront yet again the clash of values between liberty and community, between short-term and long-term, between sacrifice and selfishness. That dialogue could become a healthy one -- if we can see the argument as one of values not legal principles. It will be a dialogue not about the commerce clause of the Constitution but about the Preamble. We will, as we always have, need to figure out what we really mean by "establish justice" for "We, the People."

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