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OpEdNews Op Eds    H3'ed 9/29/11

Would the Founders Like Health Law?

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Robert Parry
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Today's American Right is fond of pushing the idea of "originalist" thinking by the Founders to rally opposition to government initiatives that address modern-day problems. The claim is that if George Washington, James Madison and other drafters of the Constitution didn't anticipate something, the federal government must not act on it.

This approach, which fits with what conservatives call "strict constructionism," has a facile appeal to many Americans, especially Tea Partiers who like to dress up in Revolutionary-era garb and channel the Founders' supposed hatred for the federal government. The argument is sure to reappear as the rightist-dominated U.S. Supreme Court considers the new health care law next year.

However, the truth is that the Founders devised the federal government to be a powerful and adaptable entity with broad implicit powers, comparable to a sophisticated software platform that can handle a variety of tasks, anticipated and unanticipated.

Most significantly on this point, the Constitution gives Congress the power to "regulate commerce with foreign Nations and among the several states," the so-called "commerce clause," which traces back to the very first substantive presentation of the Constitutional Convention on May 29, 1787.

Then, the Virginia delegation had one of its members, Edmund Randolph, present a critique of the Articles of Confederation, which had governed the United States for the prior decade and which created a federal system that was so weak that it threatened the future of the young nation.

Virginia's presentation laid out the framework that would later become the U.S. Constitution, creating a powerful federal government that transferred sovereignty from the 13 original states to "we the people" as represented by a new national Republic, the United States of America.

Beyond requirements for a common defense, foreign policy, currency and federal taxing authority, the Founders recognized the need to coordinate American commerce so it could compete effectively with Europe and other nations around the world.

Madison's convention notes on Randolph's presentation recount him saying that "there were many advantages, which the U. S. might acquire, which were not attainable under the confederation -- such as a productive impost [or tax] -- counteraction of the commercial regulations of other nations -- pushing of commerce ad libitum -- &c &c."

In other words, the Founders -- at their most "originalist" moment -- understood the value of the federal government taking action to negate the commercial advantages of other countries and to take steps for "pushing of [American] commerce." The "ad libitum -- &c &c" notation suggests that Randolph provided other examples off the top of his head.

Historian Bill Chapman summarized Randolph's point in his teaching materials as saying "we needed a government that could co-ordinate commerce in order to compete effectively with other nations."

So, from that first day of substantive debate at the Constitutional Convention, the Founders recognized that a legitimate role of the U.S. Congress was to ensure that the nation could match up against other countries economically.

Future Challenges

Obviously, the Founders could not anticipate every future challenge that the nation would face. But they dealt with that uncertainty by adopting the broad language of the "commerce clause."

It is also worth going back to Randolph's original presentation for an appreciation of how the Founders -- mostly a collection of businessmen, plantation owners and merchants -- recognized that a more unified nation would help them advance their commercial interests. Then, like now, the economy was paramount.

Over the next two centuries, various reforms have been needed to keep the U.S. economy strong, including Franklin Roosevelt's New Deal programs and more recent federal actions such as the health care law.

These reforms can be viewed within the framework of how the Founders really thought. They were practical men who understood the imperative of keeping the U.S. economy up to speed with other nations.

Of course, they could not have anticipated the threat to the country from spiraling medical costs -- both on government and business -- nor the failure of private insurance to protect the health of millions of Americans. But they surely would have been concerned about any situation making the United States less competitive in the world.

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Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Secrecy & Privilege: Rise of the Bush Dynasty from Watergate to Iraq, can be ordered at secrecyandprivilege.com. It's also available at

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