Thank You, Charles Fried

As the Constitution gets wielded as a prop by Tea Party Republicans, Ronald Reagan’s Solicitor General weighs in.

The extra special, really precious thing about this day in America is that the House of Representatives has been reading, aloud, the Constitution.
Although Democrats joined in this unprecedented exercise, the political narrative has been authored by the new Republican leadership in the House. In essence, it is meant to be a public cleansing of the hall, a ritual purification to drive out the sins of legislators who’ve severed the nation’s policies from its sacred roots. All that was missing this morning was the souped-up, relic ambulance that the Ghostbusters used to save Gotham.
In this story-line, we are to believe that the John Boehners and Michelle Bachmans have arrived, in the nick of time, to return us to the proper path intended by our founding fathers, where government funds wars, releases large banks and polluting industries from the heathen constraints of regulation, and, most importantly, grants tax relief to millionaires.
It is also, to be clear, the first thrust of a political one-two punch. The second act will come next Wednesday when the House is scheduled to vote to repeal the health care legislation that Congress passed last year.
If there is a familiar refrain to today’s ritual it is the surreal arrogance from the right that basically all of the disagreements between conservatives and liberals go to fundamental, even scriptural qualifications about what it means to be an American.

The Tea Party Republicans claim to have captured the headwaters of American democracy. It’s not enough for them to argue that their positions (to the extent they actually espouse positions, in lieu of indictments) are better. They start by arguing that those who disagree with them should be disqualified because they’re un-American. This explains, for example, why two out of three Republicans surveyed last year said they believed that Obama is a socialist, and that nearly half (45%) believed that he is ineligible to be President, and a “domestic enemy” to boot.

Although Democrats joined in this unprecedented exercise, the political narrative has been authored by the new Republican leadership in the House. In essence, it is meant to be a public cleansing of the hall, a ritual purification to drive out the sins of legislators who’ve severed the nation’s policies from its sacred roots. All that was missing this morning was the souped-up, relic ambulance that the Ghostbusters used to save Gotham.

One reason this is a good formula for Tea Party Republicans is that it takes care of a lot of homework. You don’t have to argue with people on the facts if you can simply disqualify and/or demonize them the way Obama, in particular, has been demonized. (In the above cited Harris poll from last year, one in four Republicans agreed with the proposition that Obama may be the Anti-Christ.)
And that really is the repulsive gist of today’s theatrics– that one wing of one party pretends that it owns the Holy Grail of American Democracy.
It’s convenient, in some ways, that this bizarrely American conflict has gotten funneled into the debate over American health care.
All contemporary democracies have had to struggle with the best ways to provide health care for their citizens. There are various advantages and disadvantages to going with a government-payer systems such as that in Canada but for the most part, getting the right mix of public and private participation in health care is a policy problem.
Here, in the U.S., it’s an ideological bloodfest.
Today the Associated Press is reporting that new analysis by the Census Bureau shows that “the number of poor people living in the U.S. is millions higher than previously known, with 1 in 6 Americans—many of them 65 and older—struggling in poverty due to rising medical and other costs.”
Yet, in our pay-to-play politics, the poor don’t really matter because they can’t afford lobbyists. That’s why the health care prescriptions from Republicans in Congress next week will be far less about fixing the inefficiencies and cruelties in the largely private American health care system, and more about how “Obama Care” is an unconstitutional intrusion into the freedoms of Americans. (To be fair, there will also be charges by House Majority Leader Eric Cantor and others that we can’t afford it, even though the non-partisan Congressional Budget Office is reporting, today, that repeal of the new health care law will add $230 billion to the deficit over the next decade.)
Front and center is the question of whether the new law’s individual mandate to buy health insurance will hold up. The clear charge from the Tea Party Republicans is that the individual mandate it is unconstitutional and it is being challenged by dozens of states, including Washington, where Republican Attorney General Rob McKenna has defied Democratic Governor Christine Gregoire in filing a federal challenge to the law’s implementation.
And it was this question that Tom Ashbrook, the host of NPR’s splendid On Point public affairs program, teed up on Wednesday’s program.
One of Ashbrook’s signatures is to gather experts from all sides of an issue. His guests to address question of the constitutionality of “Obama Care” were Randy Barnett, a law professor at Georgetown who is the leading legal voice for challenging the constitutionality of the law; Dahlia Lithwick, who covers legal issues for Slate; Akhil Reed Amar, a professor at Yale, and Charles Fried, a Harvard law professor and former U.S. Solicitor General.
Near the front of the show Ashbrook was audibly taken aback when, seconds after he introduced Fried, the former Solicitor General offered an opinion on today’s political theatre.
“I think it is a combination of mistake, ignorance, and pure politics,” said Fried.
“Wait a minute,” Ashbrook interrupted. “You’re a Reagan guy.”
No kidding. Fried was Solicitor General under Ronald Reagan, a patron saint of the Tea Party.
But, Fried explained, “I’ve got my head screwed on right.”
What followed was a double-barreled attack by Fried and Amar on the notion that the individual mandate in the new health care law could be construed as unconstitutional. It’s worth listening to, especially in the way Fried brings in the pivotal writings of Chief Justice John Marshall (1801-1835) and how Amar practically barrels over Ashbrook to take down a carping Tea Party caller. The cranky caller was trying to invoke the Federalist Papers to support his argument that Obama and the Democrats were at odds with the intent of the Constitution’s framers. The professorial Obama could learn a thing or two in the way Amar, figuratively at least, seized the poor guy by the lapels.
To my ear, though, the best part of the program comes right at the 32 minute mark (you can slide easily to it on the audio control bar when you bring the show up on your computer.)
A bit of background first: there actually used to be a working consensus between the two main political parties that, at a minimum, the growing quagmire in the American health care system required major reforms in health insurance. In that sense, the “Obama Care” plan is the old bipartisan compromise—where in lieu of expanding Medicare to include everybody in a government run health care system—we impose new rules on insurers and then support private insurers by requiring that everybody buy insurance. Hence, the individual mandate that is now the béte noire of the Republicans, including Washington’s Attorney General.
Here’s how an exasperated Charles Fried addressed this issue with Ashbrook:
“You know the reason we have the health care mandate, it’s very ironic, the reason we have it is because the same folks who are screaming about the mandate are the ones who are absolutely, adamantly opposed to a government option as a catch, to catch the people who don’t have health care. And the only way you can have large amounts of coverage is either every body is in the [insurance] pool, or you have a government option.”
Bingo. Thank you, Charles Fried.

“I think it is a combination of mistake, ignorance, and pure politics,” Fried said when asked about today’s theatrics with the Constitution on the floor of the House. “Wait a minute,” Ashbrook interrupted. “You’re a Reagan guy.”

If you really do think that the individual mandate is unconstitutional, then your options are basically to do nothing and allow the system to continue breaking down, or you can support the single-payer, public option. What got demonized, here, as “Obama Care” was really a Republican alternative to a universal expansion of Medicare to people under the age of 65. It’s just that, ultimately, the lockstep assault on Obama was more important to Republicans than health care reform.
Give the Republicans credit, I suppose, for the superb bit of arson they’ve done to demonize Obama and the Democrats. It’s been such a spectacular blaze, thus far, that Americans either haven’t noticed or don’t care that the Republican revolutionaries haven’t proposed an alternative solution to one of the nation’s most expensive challenges. (And it’s not just health care. Republican leaders also want to repeal the Wall Street banking and consumer protection reforms, taking us back to the deregulatory environment that sent the world teetering toward economic collapse just two years ago.)
I think it will soon become clear (if it isn’t already) that what this boils down to is a renewed war on the poor in America. For now, the cover for this mean-spirited campaign is the Constitution—not the Constitution that is, but the one the Tea Party imagines it to be.