Orval, Bull and Justice Jim | Arkansas Blog

Wednesday, March 17, 2010

Orval, Bull and Justice Jim

Posted By on Wed, Mar 17, 2010 at 6:42 AM

Their ghosts must be smiling as a surge of states rights fervor sweeps the land.

The reactionaries are invoking interposition-style tactics on more than health care. They want to limit federal authority to use the National Guard (Orval would have liked that); to sidestep firearm laws; to legalize medical use of marijuana; to limit federal law enforcement authority.

The Constitution and court precedent would seem to make all these losers in the long run. (Well, maybe not court precedent, given the Roberts-Alito-Scalia-Thomas-Kennedy-Federalist Society court.)

As luck of timing would have it, Ernest Dumas has considered this legal development in a thoughtful column this week. An early view:

By Ernest Dumas

The debate over universal health insurance has soared to loftier and loftier planes so that it is now being argued in contexts of the great movements of the American experiment.

It is either this generation’s gift to the liberal democratic tradition going back to the ratification of the Bill of Rights, or else it is a return to the despotism of the English crown, the latter being the argument of the movement that takes the Boston Tea Party as its icon.

That is actually where the debate should be, not at the level of death panels, doctor reimbursement rates, abortion funding and public options.

So it is entirely appropriate that the opponents of universal health insurance are talking about using the ancient doctrine of interposition and nullification by the states if the health-reform bill becomes law, as the Republican candidate for governor of Arkansas and many other Republican candidates for office in Arkansas and elsewhere propose.

That is one side in this historic dialogue over the mission of America, even if the idea of interposition and nullification has been a dead letter since 1803, when the U. S. Supreme Court decided Marbury v. Madison.

To your surprise, I take the former, more expansive view of the issue, that guaranteed health care for all is a very large matter in the sweep of history and one in full accord with all the other majestic developments in the long quest to fulfill the natural rights of man, freedom and equality of opportunity. But you must recognize the other side in this historic argument, which is that it is not the role of the nation to interfere with the natural rationing of those good things.

The high principles of liberty and equal opportunity were reserved at the nation’s founding for white propertied males, but it fell to every generation or two to interpret those rights more and more broadly, extending them to religious minorities, African-Americans, one wave of immigrants after another, women, the aged and disabled, and finally in the latter days to sexual minorities. The legislature, the Supreme Court or the president by proclamation banned one form of discrimination after another and extended equal opportunity into the fields of education and work, guaranteeing access on an equal footing for women, blacks, the disabled and religious and sexual minorities.

A century ago, the country began to put some meat on the bones of those other inalienable rights endowed by the Creator, life and the pursuit of happiness, by promising people a measure of security to which every American could lay claim. The other great Republican, Theodore Roosevelt, articulated the idea in 1912. “It is abnormal,” he said, “for any industry to throw back upon the community the human wreckage due to its wear and tear, [so] the hazards of sickness, accident, invalidism, involuntary unemployment, and old age should be provided for through insurance.”

 It would be another 23 years before his cousin Franklin, with an assist from the great Arkansawyer Joe T. Robinson, put most of the idea into law by creating universal insurance for unemployment and old age. John F. Kennedy and Lyndon Johnson, with the help of another Arkansawyer, Wilbur D. Mills, made a down payment on Teddy Roosevelt’s other guarantee 30 years later by insuring medical care for the elderly, disabled and very poor.

We will see, probably this month, whether our generation fulfills its destiny by taking the next step and insuring everyone else.

The opponents rely on the historic principle that liberty, opportunity and security are of limited supply and if they are extended to everyone all those who have it must necessarily sacrifice some of theirs.

So comes the new Republican principle of interposition, which their conservative forebears wanted to use to stop the federal government from regulating slavery. They follow in the footsteps of John C. Calhoun and our own late beloved Jim Johnson, who wrote the interposition law that ordered the state government to block the implementation of U. S. Supreme Court orders on school integration in Arkansas.

Today’s Republicans propose to pass state laws or issue executive orders thwarting the mandate for everyone to acquire health insurance, with government assistance if they cannot afford it alone. It is just as much legal nonsense as Calhoun’s and Johnson’s stratagems but with the current U. S. Supreme Court you never know. The Roberts court could reinvigorate the doctrine, which, after all, Madison and Jefferson dallied with for a time.

The central principle in the opposition to the health-care bill, which is that the government has no business requiring people to buy a policy whether it’s automobile liability or social insurance, is an enduring one. But those who propose it have to be consistent or at least explain why they aren’t. Would they oppose unemployment insurance, Social Security and Medicare, which mandated that every single person and every employer big and small enroll and pay premium taxes?

The only difference between 1935 and 2010 is that people then had to buy insurance from the government and now it will be from private business.

Their Republican antecedents in 1935 were honest about it, using the same doomsday language of Calhoun and today’s Republicans in opposing the unemployment and old-age and survivors insurance act. Take a trio of New York congressmen. Daniel Reed predicted that mandatory insurance would mean that Americans would feel “the lash of the dictator.” Congressman John W. Wadsworth said it would create a power so vast that it would “pull the pillars of the temple down upon the heads” of the American people. Or this fine oration from John Taber: “Never in the history of the world has any measure been brought in here so insidiously designed as to prevent business recovery, to enslave workers and to prevent any possibility of the employers providing work for the people.”

But then most of them got scared, voted for it and lived to bask in the gratitude of another generation. Our Republicans are sterner men.


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