I am spending a long weekend at an academic conference on the judicial thinking of the early Republic--not my specialty, of course, but as you all know, there's very little political history I can't get interested in. The conferees include academics and lawyers and represent a very broad spectrum of opinion, and at lunch today we got into a big argument about the health care law, which many of today's conservative intellectuals feel must be declared unconstitutional so as to put some limit on governmental power. Several of them believe that health care, like everything else, should be left to market forces. It has set me thinking on a number of levels.
To begin with, for the conference we have read the opinions of Jefferson and Hamilton on Hamilton's First US Bank, which Hamilton persuaded Washington to approve. That was an interesting argument because it showed Hamilton to be clearly in favor of the modern liberal position about government: that it should exercise its powers to promote the public good. The argument turned on the clause giving the Congress the power to pass laws "necessary and proper" to carry out its enumerated powers, which included, of course, raising taxes and borrowing money. Jefferson (and Madison, in Congress) took a very strict and suspicious view of this clause, arguing that since the government could borrow money without a national bank, it was not necessary, and thus, not allowed by the Constitution. Hamilton on the other hand argued that the national bank would be able to borrow more cheaply and efficiently, thus contributing to the nation's financial health and prosperity, and that this was more than enough to make it "necessary and proper" to the carrying out of the government's enumerated functions.The great arguments over New Deal legislation were not all that different, and the argument over the health care law isn't either.
At bottom, that argument comes down to one's view of government: is it a necessary evil whose functions must be as limited as possible, or is it potentially an engine of good, which can increase the security, the prosperity, and yes, even the liberty of its citizens? Jefferson, the Republicans of the Gilded Age, 20th-century Southern Democrats (for the most part) and the modern Republican Party hold the former view; Hamilton, the two Roosevelts, Wilson, Truman, Kennedy and Johnson held the latter. The question that we spent some time on was whether the Constitution takes sides in this debate, and it is my firm belief that it does not. The "necessary and proper clause" allows for either interpretation, and thus guarantees in practice that the people and their elected representatives will interpret it according to their beliefs, the particular situation they face, and the distribution of political power at any particular moment. That has been the essence of our democracy for more than 200 years and it so remains, even though I regret to say that my side of the argument seems to be losing at the moment.
As for health care, I have begun to think that we shall never make real progress until we clearly define it not as a consumer good, but as a public necessity. We accept that we cannot use the market to provide us with an army and navy, or police forces, or roads and bridges, and thus in theory at least we try to provide those things with maximum efficiency and with the lowest cost. When we view health care in the same way--as something necessary both to individuals and to society as a whole--we will be able to make a whole series of difficult decisions relatively easily. Whether we will be forced into that decision any time soon I do not know. I am sad that President Obama did not take this aspect of the question on.