Nation’s 'Constitutional Culture,' How it Undergirds the Health Care Law

by Jeremy Leaming

According to at least some polling the Tea Party infused meme that the landmark health care reform law is constitutionally flawed because the law’s minimum coverage provision is a wild overreach of congressional power has had some success. But pollsters, thankfully, won’t determine whether the law stands or falls.

The Supreme Court, which hears oral argument in the states’ challenge to the Affordable Care Act in late March, of course will have the ultimate say in his matter. And according to an array of constitutional law experts it’s a matter that shouldn’t be a difficult call.

In a piece for the Federalist Society’s Harvard Journal of Law and Public Policy, UNC law professor and constitutional law expert William P. Marshall details why the ACA fits within the nation’s “constitutional culture,” as defined by the late Chief Justice William Rehnquist. (In Planned Parenthood v. Casey, Marshall writes, that for Rehnquist “constitutional culture is akin to the beliefs about constitutional meaning that are embedded in what he calls the ‘national psyche.’”)

Opponents of the health care law say it goes against the nation’s commitment to “rugged individualism,” and against some conservatives' distrust of a strong central government.

“But the individualist claim,” Marshall (pictured) writes, “runs up against a number of harsh realities that diminish its force." For starters, societal changes since the 1930s have worked to undermine the notion of a society held together by rugged individualists.

Marshall, a former ACS Board member, notes, “The entry costs needed to succeed in this economy, for example, are far greater because of the shifts in the types of jobs that are available and because of the greater expectations placed on those joining the workforce. One reason for this is education. Succeeding in the current economy requires sophisticated training that cannot be mastered by the individual acting alone.”

Moreover, Marshall continues, the “individualistic model also is under siege because of its corollary implication that unencumbered individualism leads to the betterment of American society as a whole also has become more difficult to support as a sustaining myth. A recent article in The Atlantic, for example, noted the major beneficiaries of the expansion of the global economy are a wealthy class of global elites who have no particular national allegiance at all. There is no American exceptionalism in such an economy. There is only concentrated wealth – with much of it lying outside American borders.”

Responding to the “distrust of government narrative,” Marshall says that it is one that has been responded to time and again. “One of the primary motivating concerns animating the adoption of the Constitution, was after all, that the Articles of Confederation created a national government with insufficient authority to meet the demands of a burgeoning nation. As this early history taught us, a strong central government is necessary not only for national defense but also for resisting the parochial interests that come to the fore when power is too decentralized.”

Just as important is the need for a national government able to “combat the abuses of the private sector,” Marshall says. “The problem with overly limiting the power of government, in short, is that it leads to another type of social ill, the unchecked dominance of entrenched power elites.”

So what are the aspects of our constitutional culture that undergird the health care reform law? Marshall focuses primarily on two aspects – the desire for a mobile society, where citizens, if they work hard and are not cheated by an unfair playing field, can better their lots in lives, and a continued commitment to equality.

The devotion to a mobile society, has taken a beating. For years the middle class has been shrinking, while the number of poor Americans has grown, and the tiny few who are wealthy are amassing even greater wealth (Joseph Stiglitz and other renowned economists have written about this matter frequently.)

Regarding our shared commitment to equality, Marshall says “one might argue that our cultural commitment to equal opportunity does not mean that we believe in government-assisted equal opportunity.” But Marshall says that assertion is flimsy, pointing out to the lessons of the Civil Rights movement, and what has long been recognized – “that government assistance in overcoming externally imposed barriers to opportunity is often necessary.”