A Washington Post writer argues that the Supreme Court is using Obamacare and other current cases to redefine American government in much the same way as was done during the New Deal:
President Franklin Roosevelt’s alphabet soup of federal programs ran
counter to established doctrine denying the constitutionality of
economic and social legislation, state or federal. Steeped in that
tradition, many legal experts recoiled in horror at FDR’s plans.
Amid
a Great Depression, and under tremendous pressure from a popular
president and his huge congressional majority, however, this expert
consensus gave way. The Supreme Court abandoned its laissez faire
understanding of the Constitution’s Commerce Clause (among other
provisions) so as to permit New Deal programs.
I don’t think this
history proves that “politics, money, party and party loyalty” crassly
determined the decisions of the 1930s. If that were true, why accord
them precedential weight today?
Rather, what it shows is that the
United States periodically redefines the role of the federal government
in society, in a process that is both political and legal — and,
sometimes, more revolutionary than evolutionary. In that sense, we do
have a “living Constitution.”
In the 1930s, expanding federal
power was innovative, promising. By blessing it, the court aligned
itself with the wave of the future, in this country and globally. Ditto
for the 1960s. Much of the legislation that resulted — from Social
Security to the Voting Rights Act — was indeed progressive.
Today,
however, there is nothing new about federal intervention — and much
evidence from the past 70 years that big programs produce inefficiencies
and unintended consequences.
