The feeling amongst those “in the know” is that the Supreme Court is likely to declare the “individual mandate” from 2010’s Affordable Care Act “unconstitutional,” thus mortally wounding what was Barack Obama’s central piece of legislation of his first term. Yippee, the Republic is saved!
Of course, there is no real constitutional justification for the vast majority of what the government does on a daily basis, and this goes beyond things like foodstamps or the space program. Since the Second World War, none of America’s array of overseas military adventures has been “constitutional” in the sense of being declared by act of Congress. This doesn’t seem to bother self-styled “conservatives” a great deal. They are, however, able to get their minds around the fact that “the government shouldn’t make you buy something,” and thus they’re patting themselves on the back after their favorite “Originalist” justices have attacked the legislation of the rival party.
The reality is that “legality” (the base conception of “constitutionalism”) is itself an illusion. Paper documents and the imprimaturs of men in wigs and black robes have rarely restrained governments; they have instead offered justifications for the use of state power. Revilo Oliver was correct when, in his more mainstream days, he advised that conservatives make the Constitution the basis of their political philosophy—not because they should embrace “legality” but because the document was the articulation of the social world of the elite class of America’s historic majority. The fly in the ointment of this type of thinking is that the class of George Washington—a planter, slave owner, and one of the wealthiest men in the colonies—is long gone; all the Constitution is now is a document to be interpreted by tricksters like Elena Kagan, who, in one of her few published articles, recommended the banning of “hate speech” by legally classifying it as pornography.)
People want things that they like—things that they think are “moral” and “good,” and which might benefit them materially—declared “legal,” if not subsidized. Things they don’t like, they want to be declared “unconstitutional,” “socialist,” “un-American,” etc. (Liberals, too, will rediscover the “original intent of the Founders” when it suits them.)
In this line, Larence O’Donnell, MSNBC’s self-declared “socialist,” was correct when he said that Obamacare was fatally flawed from its inception; the Democrats should have abandoned its Byzantine structure and new mandates and incentives, which “scare people,” and instead simply stated that they wanted to give "Medicare to all." This would have forced Republicans to challenge Medicare, as opposed to allowing them to claim that they were “protecting Medicare.” (The exchange begins around 4:05.)
Medicare is no less “socialist” than Obamacare—indeed, one could argue that it is more—and Medicare is already the kind of debt-financed fiscal disaster conservatives claim Obamacare will be in the future. But the fact remains that voters are used to Medicare, they like Medicare, and they want their Medicare.
Imagine if Judge Antonin Scalia began stating publicly, “Now wait a minute—you want the government to fix prices and pay for healthcare for the elderly? Will it do the same for broccoli and cellphones!? What can government not do, if you allow it to do this!?” Hardy-har-har... The public would, of course, be appalled by his suggestion, and Scalia might be declared insane and dismissed from the Court.
In turn, if we were able to install Alex Kurtagic as Grand Emperor of Magna Europa, I’m sure we would have little trouble finding a colorful “originalist” legal scholar who’d be eager to declare that our new regime was in line with the Founder’s intentions.
In closing, a note about DC politics. Inspired by Andrew Sullivan's article about Obama’s three-dimensional-chess “long game,” perhaps we should conclude that the Court’s decision was all part of a multi-layered scheme by...Mitt Romney! The Governor created “Romneycare” in Massachusetts in 2006...knowing that it would be used as a model by an upcoming Democratic president...and become unpopular...thus ensuring Romeny’s future electoral triumph.
More seriously, my guess is that healthcare costs will continue to rise, O’Donnell will be proven quite wise, and calls for “Medicare for all!” will soon be heard from both sides of the aisle.