The Real Affordable Care Act Battle: Constitutionalists vs. Confederates

When the Justices hand down their ruling, it will be a decisive moment in a debate stretching back to the Articles of Confederation and the nation’s founding.


By Tom Perriello


When I was growing up in central Virginia, corner stores typically sold hats emblazoned with the Stars and Bars declaring “Lee Surrendered but I Didn’t.” I never imagined that five men in black robes might hand Confederates a victory through the Supreme Court that they could not win at the original Constitutional Convention nor later on the battlefields of the Civil War.


Yet we may be at that juncture today. As our country anxiously awaits the Supreme Court’s verdict on health-care reform, the media has reduced the case to the narrow terms of a political horserace. This characterization ignores the enormous significance of this case — a shift from the modern fight between liberal and conservative Constitutionalists back to an older and more nationally divisive debate between Constitutionalists and Confederates.


From the Articles of Confederation to the Constitution of the Confederate States of America to the Lochner-era Supreme Court, confederationists have long believed in a United States consisting of states loosely united by a small, weak central government, and they have fought for more than 230 years to prevent, undermine, and erode the Constitution. While the term “Confederate” rightly conjures up America’s sin of slavery and the racially charged movements for states’ rights and state nullification, the present-day confederationists include conservative libertarians and corporatists who support a central government too weak to regulate or tax commerce.


This vision of a tiny, powerless central government has always been at odds with the U.S. Constitution, a document our nation’s founders wrote explicitly to reject and replace the Articles of Confederation. George Washington once wrote that the weakness of the Articles, which lacked the Constitution’s power to tax and spend for the general welfare, almost cost us the Revolutionary War. Disconnected and self-interested, the states struggled to harness the unity and cooperation necessary to defeat a world superpower.


The Founders addressed this by writing a Constitution that empowered America to “legislate in all cases for the general interests of the Union.” Since the Constitution’s creation, American leaders have enjoyed the power necessary to solve national problems, whether those problems were a Depression in the 1930s, a system of racial apartheid in the 1960s, or a costly and inadequate healthcare system in 2010.


But the Confederate legacy also lives on. As Elizabeth Wydra of the Constitutional Accountability Center notes, “The Tea Party’s version of the Constitution has far more in common with the failed Articles of Confederation … than with our actual, enduring U.S. Constitution.” The Articles famously lacked our Constitution’s commerce power. Similarly, the Confederate Constitution stripped the federal government’s authority to “provide for the … general welfare,” from provisions relating to taxation and eviscerated the interstate commerce clause. These limitations would have likely doomed not only the Affordable Care Act, but also major federal programs such as Medicare and Social Security.


For decades after the Civil War, big corporations saw the value of a confederationist vision of a weak central government. They aligned with confederationists in the early 20th century to create a Supreme Court that struck down minimum-wage laws, child-labor laws, and laws protecting workers’ right to unionize. In the 1930s, confederationist justices struck down law after law intended to rescue America from the Great Depression. The Confederate Constitution’s call for weak national regulations and racial oppression echoed again in the 1950s and 1960s. Alabama Governor and U.S. presidential candidate George Wallace famously based his anti-desegregation platform on the principle of states’ rights, and after the Supreme Court’s momentous ruling in Brown v. Board of Education, states throughout the South claimed they could simply ignore the order to integrate schools. When Congress enacted a ban on whites-only lunch counters, segregationists claimed the ban exceeded the federal government’s authority. They lost, unanimously, in the Supreme Court.


Yet today’s Supreme Court is moving toward the confederationist framework of protecting corporate interests. From its decision authorizing corporations to spend unlimited political money in the Citizens United case to its assaults on equal pay for women and job security for older workers, the Court’s five conservatives have left no doubt about their willingness to obviate the commerce and general-welfare clauses of the Constitution to protect powerful corporate interests. It is worth noting that, throughout the last century, when the corporatist strand has conflicted with the state’s-rights position — from Lochner (in which the Court infamously overturned New York’s public health regulations in 1905) to the current Court’s reversal just this week of Montana’s anti-corruption campaign-finance law — the corporatist side has won.


Respected conservative constitutionalists have all but begged the Supreme Court to stay loyal to the document. Judge Laurence Silberman, a Reagan appointee who received the Presidential Medal of Freedom from President George W. Bush, warned that the case against the Affordable Care Act has no basis “in either the text of the Constitution or Supreme Court precedent.” Judge J. Harvie Wilkinson III, a runner-up for the Supreme Court nomination that eventually went to Chief Justice John Roberts, warned that striking down health reform “is a prescription for economic chaos that the framers, in a simpler time, had the good sense to head off.”


During his confirmation hearing, Chief Justice Roberts claimed the mantle of these conservative constitutionalists, as an umpire calling balls and strikes. But if he and the other four conservative justices overturn the Affordable Care Act, they will effectively be taking the umpire off the field. In historical context, this amounts not to a reinterpretation of the Constitution but rather its rejection. If the law is upheld, the real victory is not for President Obama but for that most durable of governing documents, the U.S. Constitution.