Saturday, June 30, 2012

The Health Care Case and the Social Contract


If you haven't already, read Joey Fishkin's post on why "we are headed for a long-term change in the basic social bargain in the United States."

In an essay at the Atlantic, I connect this theme-- the Affordable Care Act as a significant change in the social contract--to the way that federal courts work in American history.

One important function of the federal courts is legitimating and policing government innovations that alter the terms of the social contract. Although they may resist at first, courts eventually ratify the changes and, in the process, set new constitutional ground rules going forward.

We can see this process in the constitutional struggles over the New Deal and the civil rights revolution. The Health Care Case is yet another example. In my essay, I explain why Chief Justice Robert's opinion performs this function: it legitimates and ratifies the new social contract created by universal health care, but with a conservative spin. Mandates on people not otherwise engaged in commerce must use the taxing power, not the commerce power, and conditional federal spending can't leverage withdrawing funding from existing social programs to induce states to accept new social programs.

In this respect, Roberts' opinion is of a piece with the work of the Burger Court: The Burger court ratified the 1960s civil rights revolution and Great Society programs, but with a distinctively conservative gloss that reshaped the meaning of these achievements going forward.

The Health Care Case is, of course, is only one decision. It is the beginning of the story. A great deal will turn on who wins the next several elections, and who gets to staff the federal courts and the Supreme Court. We will only know what changes we have wrought, and what they mean, later on.

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