Founding Fathers Would Approve of National Healthcare Policy

About Elizabeth B. Wydra:

Elizabeth Wydra is chief counsel for the Constitutional Accountability Center, a think tank, law firm, and action center dedicated to fulfilling the Constitution's progressive promise. A frequent commentator for broadcast and print media, Elizabeth regularly participates in Supreme Court litigation, and was a law clerk for Judge James R. Browning of the U.S. Court of Appeals for the 9th Circuit.

Our Constitution's text and history demonstrate that the national healthcare crisis—in which tens of millions of Americans lack access to quality, affordable care—is the sort of national problem that the framers of our founding charter wanted the federal government to have the power to solve.

Our Constitution was drafted in 1787 "in Order to form a more perfect Union"—both more perfect than the British tyranny against which the Founding generation had revolted and more perfect than the flawed Articles of Confederation under which Americans had lived for a decade since declaring independence. George Washington and the other delegates to the Constitutional Convention shared a conviction that the Constitution must establish a national government of substantial power, in contrast to the extremely weak central government of the Articles, which was so dysfunctional that Washington thought it nearly cost us victory in the Revolutionary War. (George Washington was also apparently fine with government mandates—he signed into law the 1792 Militia Act, which required young men to outfit themselves with a musket, knapsack, and, in some cases, a serviceable horse.)

[See a collection of political cartoons on healthcare.]

Under our enduring Constitution, Congress has the express constitutional authority to regulate interstate commerce—the healthcare industry comprises nearly 20 percent of our nation's economy—and tax and spend for the general welfare, as well as the broad power to pass laws that help execute these specific grants of authority.

Given the Constitution's grant of significant authority to the federal government to act in the interests of the country as a whole, it is no surprise that a majority of the lower court judges who have ruled on the healthcare law have upheld it, including prominent conservative judges. Reagan-appointee Judge Laurence Silberman on the D.C. federal appeals court explained that the attacks on the law have no support "in either the text of the Constitution or Supreme Court precedent." Another conservative appeals court judge, Jeffrey S. Sutton—who clerked for Supreme Court Justice Antonin Scalia—explained that whether you think the law is good policy or not, it clearly passes constitutional muster.

If the Supreme Court Justices are faithful to the Constitution's text and history, principles of federalism, and precedent—including decisions authored or joined by some of the current conservative Justices—the Court should conclude the healthcare law is constitutional.

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