Πέμπτη, 14 Ιουνίου 2012

Obamacare: Obscuring the Federalist Argument

Prof. Ronald Dworkin's article in the New York Review of Books  on the "mandate", Obamacare's most controversial provision, makes for a very interesting read. The author purports to present the actual policy argument, on which the Supreme Court should uphold the Affordable Care Act's constitutionality. He seems to think that the contentious issue, whether the federal Congress has, among its enumerated powers (as written down in Art. I section 8 of the U.S. Constitution); whether, in particular, the mandate, i.e. the requirement that most individuals buy their own health insurance on a penalty of a fine, falls within the scope of the power of the Congress to "... regulate commerce ... among the several states ...", is rather trifle.

However, the issue is not whether the mandate is a good idea policy-wise. Prof. Dworkin seems to ignore the fact that 26 states are among the plaintiffs in the constitutional challenge against the mandate. 26 states wish for the Supreme Court to rule that it is up to them, not the federal government, to enact such sweeping legislation.

I find Prof. Dworkin's policy arguments very convincing, although equally valid counter-arguments could be put forward. However, this is a policy discussion that should be taking place on the state level. Although the Supreme Court should respect the federal legislature's role and afford all legislation passed at least a presumption of constitutionality, based on the argument that Congress is elected, while the Supreme Court is not, in actuality the prominence of the federal government is in fact a step away from democratic self-government, if one understands that self-government entails that decisions are made as close to those affected as possible. People do vote, of course, for the federal Congress. Yet, it is the state legislative bodies that are much more reflective of local opinion than federal government. This federal over-extension led to the imposition of the will of a majority in some states over majorities in other states. People are disinclined to engage in debate over the merits of a policy proposal among themselves, since their opinion might become irrelevant within the context of the federal legislative bodies, in effect letting others make their decisions for them.

The only thing that's worse than federal over-extension at the legislative level is federal judicial activism. How much people value their privacy nowadays is very understandable, yet no such right exists within the federal Constitution or its Amendments. However, the Supreme Court, with a reasoning that was similar to Prof. Dworkin's in that it appealed to the policy aspect of the cases before it, found that such a right existed within the "penumbra" of a number of Bill of Rights provisions, precluding the state from prohibiting the use of condoms between married couples. That finding by the Court meant that the citizens of Connecticut would no longer have to debate the silliness of their legislation; they could rely on someone else, in this case the Supreme Court, to take care of them. The women's movement lost a lot of its dynamic when the right of privacy was extended to include a right to abortion on demand by the Court, not by the voters. And although most people would not have, nowadays, problems with what consenting adults do in their bed, a sense of civic responsibility was lost, when the Supreme Court declared that laws penalizing "sodomy" are unconstitutional. If I were a Texas citizen, I'd be hoping to be able to overturn such law by ballot.

The federalist argument, then, should be taken seriously. Political discourse is fundamental for the functioning of a democracy and is displayed at its best on a local level; it should not be made moot by extension of the federal legislative or judicial powers.

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