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Zionism, Health Care and the Illiberalism of Progressive Minds

By Peter Berkowitz - April 8, 2012

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Indeed, Beinart brings characters with whom he disagrees on stage only to establish their villainy. Netanyahu, in this book, comes off as little better than a Jewish fascist. Beinart presents AIPAC and the leaders of other major Jewish organizations as mindless minions loyal to Israel’s prime minister. This is an old charge, usually tinged with anti-Semitism. That is not Peter Beinart’s intention, but he is keeping strange company.

Beinart’s bottom line is clear: Conservative opinion about how to resolve the conflict between Israel and the Palestinians is not just deficient or mistaken, but benighted, bigoted, brutal.

This style of argument is of a piece with the approach adopted by leading progressive commentators to the debate over the challenge by 26 states to the constitutionality of the Affordable Care Act. A New York Times editorial proclaimed that should the five more conservative justices vote to strike it down, they will demonstrate that their majority is “virtually unfettered by the law.”

Concerning the conservative argument, New York Times online columnist Linda Greenhouse announced, “There’s just no there there.” The belief that the individual mandate, which requires people to buy insurance or pay a federally imposed fine, is unconstitutional, according to Greenhouse, “is simply wrong.”

Washington Post columnist E.J. Dionne declared that were the high court to strike down the Affordable Care Act it could only be the result of a lawless imposition of “ideology.” Slate’s Dalia Lithwick casually observed that the constitutionality of the health care law was “uncontroversial.”

In the New York Review of Books this week, heavyweight constitutional law scholar Ronald Dworkin agreed with progressive conventional wisdom that the constitutionality of the individual mandate “is not really controversial: the Constitution’s text, the Supreme Court’s own precedents, and basic constitutional principle seem obviously to require upholding the act.” Since the Affordable Care Act is “plainly constitutional,” he concludes, “it will be shaming if” five conservative justices “do what Obama’s enemies hope they will.”

Even President Obama got in on the act, declaring that holding the individual mandate unconstitutional “would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” Leaving aside that the president had his facts wrong (the now-unpopular legislation passed Congress narrowly, in a contentious, party-line vote that helped Democrats lose the House in 2010), the step would be neither unprecedented nor extraordinary. The Supreme Court’s power to strike down congressional acts repugnant to the Constitution was explained by Alexander Hamilton in "Federalist 78"; affirmed by the Supreme Court in Marbury v. Madison in 1803; and, though particular exercises of it are always criticized by the losing side, it is all-but-universally regarded as a central function of the court.

The president’s efforts to walk back his remarks the next day by insisting that he was referring only to post-New Deal cases that dealt with economics or commerce did not change the fundamental point. The president had joined the progressive chorus in insisting that willful and rank judicial activism would be the only conceivable explanation of an adverse ruling by the court.

Actually, in assessing the constitutionality of the Affordable Care Act, the Supreme Court faces a hard question. On the one hand, the Constitution’s Commerce Clause gives Congress the power to regulate interstate commerce; since the New Deal the Supreme Court has interpreted that power broadly; and health care involves an enormous national commercial enterprise.

On the other hand, Congress has never before sought to compel individuals to engage in commerce by making failure to purchase a good punishable by federal law; upholding the individual mandate would be tantamount to changing the structure of American constitutional government from one of limited and enumerated powers to one in which all activities would be subject to congressional regulation, because all activities indirectly affect interstate commerce in the way that not buying health insurance indirectly affects interstate commerce; and invalidating the individual mandate would not require the court to overturn a single precedent, only set an outside limit on the vast power Congress already exercises in the regulation of interstate commerce.

The failure to acknowledge any merit whatsoever to the conservative case against the individual mandate exhibits a breathtaking unfamiliarity with 30 years of conservative constitutional thought concerning the architecture of limited government. What’s more, it bespeaks a stunning failure of the liberal imagination.

A progressivism that has so lost its liberal bearings is poorly suited to lead the nation in crafting reforms to our flawed health care system. And, as Peter Beinart’s book vividly illustrates, when it looks abroad and directs its attention to the Middle East, that same progressivism is unfit to instruct Israel on how to deal with its tragic conflict with the Palestinians. 

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 Peter Berkowitz is a senior fellow at the Hoover Institution, Stanford University.  His writings are posted at www.PeterBerkowitz.com and you can follow him on Twitter @BerkowitzPeter.

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