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The Court Affirms Our Social Contract
Jack M. Balkin
The Court Affirms Our Social Contract
The health-care case wasn't about broccoli or the Commerce Clause. It was about ratifying a change in our nation's social policy.
<...>
Whenever the federal government expands its capabilities, it changes the nature of the social compact. Sometimes the changes are small, but sometimes, as in the New Deal or the civil rights era, the changes are big. And when the changes are big, courts are called on to legitimate the changes and ensure that they are consistent with our ancient Constitution. In this way, courts ratify significant revisions to the American social contract.
<...>
The most famous example of this is the constitutional struggle over the New Deal between 1933 and 1942. In the early 1930s the Supreme Court was dominated by conservative Republican judges who feared that the New Deal was out-of-control socialism inconsistent with our Nation's basic charter. They struck down President Franklin D. Roosevelt's National Recovery Act and other legislation protecting coal miners and railroad employees. Roosevelt responded with a new round of state building, sometimes called the Second New Deal. In 1937 Justice Owen Roberts joined the liberal Justices in a pair of 5-4 decisions upholding a state minimum wage law and the National Labor Relations Act, thus ratifying key aspects of the Roosevelt program. Over the next few years, Roosevelt made nine new appointments to the Supreme Court and this Court legitimated the New Deal regime in a series of landmark opinions.
Contrast this with the civil rights revolution and the Great Society. By 1962, the Warren Court was staffed with liberal Republicans and Democrats who generally supported Kennedy/Johnson liberalism. The Justices upheld the Civil Rights Act of 1964 and the Voting Rights Act of 1965, and precedents established during the New Deal ensured that Great Society programs would be constitutional. The real constitutional struggle begins in 1968, when Richard Nixon appointed four new conservative justices to the Court in his first term. These new justices accepted and ratified the changes of the 1960s, but also limited them in important ways. They made clear that the welfare state was constitutionally permissible but not constitutionally required, held that education was not a fundamental right, limited the use of busing to achieve racial integration, and halted the Warren Court's revolution in criminal procedure. The changes in social contract were ratified, but on more conservative terms.
Flash forward to today. During his first term in office, President Barack Obama made health care his signature issue. The Patient Protection and Affordable Care Act of 2010 made the most significant change to the American social contract since the Great Society programs of the 1960s. It realized the long held dream of progressives of universal and affordable care for everyone in the United States.
<...>
Not surprisingly, the Affordable Care Act was challenged in the courts almost as soon as it was passed. A change this big in the social contract needed ratification by the federal courts. That is what this litigation was always about, and everybody knew it.
- more -
http://www.theatlantic.com/national/archive/2012/06/the-court-affirms-our-social-contract/259186/
The Court Affirms Our Social Contract
The health-care case wasn't about broccoli or the Commerce Clause. It was about ratifying a change in our nation's social policy.
<...>
Whenever the federal government expands its capabilities, it changes the nature of the social compact. Sometimes the changes are small, but sometimes, as in the New Deal or the civil rights era, the changes are big. And when the changes are big, courts are called on to legitimate the changes and ensure that they are consistent with our ancient Constitution. In this way, courts ratify significant revisions to the American social contract.
<...>
The most famous example of this is the constitutional struggle over the New Deal between 1933 and 1942. In the early 1930s the Supreme Court was dominated by conservative Republican judges who feared that the New Deal was out-of-control socialism inconsistent with our Nation's basic charter. They struck down President Franklin D. Roosevelt's National Recovery Act and other legislation protecting coal miners and railroad employees. Roosevelt responded with a new round of state building, sometimes called the Second New Deal. In 1937 Justice Owen Roberts joined the liberal Justices in a pair of 5-4 decisions upholding a state minimum wage law and the National Labor Relations Act, thus ratifying key aspects of the Roosevelt program. Over the next few years, Roosevelt made nine new appointments to the Supreme Court and this Court legitimated the New Deal regime in a series of landmark opinions.
Contrast this with the civil rights revolution and the Great Society. By 1962, the Warren Court was staffed with liberal Republicans and Democrats who generally supported Kennedy/Johnson liberalism. The Justices upheld the Civil Rights Act of 1964 and the Voting Rights Act of 1965, and precedents established during the New Deal ensured that Great Society programs would be constitutional. The real constitutional struggle begins in 1968, when Richard Nixon appointed four new conservative justices to the Court in his first term. These new justices accepted and ratified the changes of the 1960s, but also limited them in important ways. They made clear that the welfare state was constitutionally permissible but not constitutionally required, held that education was not a fundamental right, limited the use of busing to achieve racial integration, and halted the Warren Court's revolution in criminal procedure. The changes in social contract were ratified, but on more conservative terms.
Flash forward to today. During his first term in office, President Barack Obama made health care his signature issue. The Patient Protection and Affordable Care Act of 2010 made the most significant change to the American social contract since the Great Society programs of the 1960s. It realized the long held dream of progressives of universal and affordable care for everyone in the United States.
<...>
Not surprisingly, the Affordable Care Act was challenged in the courts almost as soon as it was passed. A change this big in the social contract needed ratification by the federal courts. That is what this litigation was always about, and everybody knew it.
- more -
http://www.theatlantic.com/national/archive/2012/06/the-court-affirms-our-social-contract/259186/
On edit, "everybody knew it." Here's Richard Kirsch in 2010:
Why Republicans are So Intent on Killing Health Care Reform
by Richard Kirsch
It’s not just about expanded care. It’s about proving our government can be a force for the common good.
Why are John Boehner, Eric Cantor and Mitch McConnell so intent on stopping health care reform from ever taking hold? For the same reason that Republicans and the corporate Right spent more than $200 million in the last year to demonize health care in swing Congressional districts. It wasn’t just about trying to stop the bill from becoming law or taking over Congress. It is because health reform, if it takes hold, will create a bond between the American people and government, just as Social Security and Medicare have done. Democrats, and all those who believe that government has a positive place in our lives, should remember how much is at stake as Republicans and corporate elites try to use their electoral victory to dismantle the new health care law.
<...>
President Obama and Democrats in Congress understood the historical importance and profound moral underpinnings of the new health care law when they enacted it earlier this year. And they knew that the right-wing attack had soured the public in swing Congressional districts and states on reform. They stood up then. They will have to stand up again, understanding that if they give way to Republicans, they lose more than the expansion of health coverage. They lose the best opportunity in half a century to prove to Americans that government can be a force for the common good.
http://www.newdeal20.org/2010/11/08/why-republicans-are-so-intent-on-killing-health-care-reform-26298/
by Richard Kirsch
It’s not just about expanded care. It’s about proving our government can be a force for the common good.
Why are John Boehner, Eric Cantor and Mitch McConnell so intent on stopping health care reform from ever taking hold? For the same reason that Republicans and the corporate Right spent more than $200 million in the last year to demonize health care in swing Congressional districts. It wasn’t just about trying to stop the bill from becoming law or taking over Congress. It is because health reform, if it takes hold, will create a bond between the American people and government, just as Social Security and Medicare have done. Democrats, and all those who believe that government has a positive place in our lives, should remember how much is at stake as Republicans and corporate elites try to use their electoral victory to dismantle the new health care law.
<...>
President Obama and Democrats in Congress understood the historical importance and profound moral underpinnings of the new health care law when they enacted it earlier this year. And they knew that the right-wing attack had soured the public in swing Congressional districts and states on reform. They stood up then. They will have to stand up again, understanding that if they give way to Republicans, they lose more than the expansion of health coverage. They lose the best opportunity in half a century to prove to Americans that government can be a force for the common good.
http://www.newdeal20.org/2010/11/08/why-republicans-are-so-intent-on-killing-health-care-reform-26298/
3 replies
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= new reply since forum marked as read
