Friday, September 04, 2009

Why we're fighting

Believe it or not, the battle over health care reform has its roots in the 1954 Brown v. Board of Education decision, the Supreme Court ruling that banned racial segregation in schools.

The Brown ruling was a landmark decision because it reversed the precedents which stretched all the way back to the ratification of the Fourteenth Amendment. The framers of the Fourteenth Amendment were very careful to leave racial segregation untouched. Twice they specifically refused to adopt language that banned discrimination on the basis of race, citing their fear that the courts might use that language to strike down racial segregation, a result, they said, that was "not intended."

When the 20th century Supreme Court struck down racial segregation, the justices were asserting the power of the federal courts to set aside both precedents and statutes in order to achieve justice, a result that they believed could not be achieved by strictly following the Constitution.

Racial segregation, like slavery before it, was protected by the Constitution's division of power between the states and the federal government. It takes the approval of three-quarters of the states to amend the Constitution, and that's a very steep hill to climb. Who knows how many generations of African-Americans might have been forced by law to live as second-class citizens if the Supreme Court and the federal government had not stretched their powers in order to force the states to ban racial discrimination.

But here's the problem.

Not everything is slavery.

In fact, nothing else is slavery. No other injustice compares to turning people into property, so that the Constitution's vitally important protection of property rights would perversely hold people in bondage in the name of liberty.

Even though women, and immigrants, and gays, and Jews, and Catholics have experienced discrimination in the United States, nothing compares to slavery.


However, to many people who came of age in the post-Brown era, any attempt to prevent the federal government from enforcing fairness of any kind, on any issue, is equivalent to opposing court-ordered desegregation.

That's why so many people are accusing health care reform opponents of racism, as House Ways and Means Chairman Charles Rangel did on Thursday.

Is it racist to want to hold the federal government to the constitutional limits of its power?

In the case of school segregation, it was.

But is private health insurance like segregation? Is market pricing for pharmaceuticals like segregation? Is state-by-state regulation of insurance companies like segregation?

Are locally-controlled school curricula like segregation? Are lower federal taxes like segregation? Is a balanced budget like segregation?

You would think so, to listen to some politicians. Yesterday Vice President Joe Biden called the $787 billion stimulus bill "morally right."

Reasonable people can disagree over whether it is "morally right" to borrow money for federal spending and then send the bill to everybody's grandchildren, but right now we're all too angry at each other to be reasonable.

The health care reform bill is a dead body, and the politicians pretending to revive it are just maneuvering to get somebody else's fingerprints on the knife. But this is an argument we're going to keep having until we face the fact that Brown v. Board of Education was necessarily unconstitutional, and not a model for the expanded use of federal government power to solve every problem.

Copyright 2009

Editor's note: For more information and complete source notes on the history of the Fourteenth Amendment and the desegregation cases, please see the appendix to The 37th Amendment at