Health Reform and The Great American Civil War

Twice this week I have read commentaries suggesting that the health care reform has brought us to a state of civil war in the United States. At National Review Online Dennis Prager proclaimed us to be at war. Sunday Michael Graham made a similar suggestion in the New York Post. If we use the term “war” in the broad context suggesting a conflict that is not necessarily violent, I agree. But I do not think this is a new development. Indeed, I believe this civil war is embedded in the American experience. My fear is not that we are at war, but rather that it may finally be coming to a climax.

What we think of as the Revolutionary War may also be characterized as the commencement of The Great American Civil War. After a lengthy period of escalating disputes and tensions, British citizens in America revolted and resorted to warfare against the British king and other British citizens in Britain and America. Brother against brother; father against son; a civil war. As with all great conflicts, the causes were complex. But the emotional animus was the intrusive nature of the central government on individual rights and its disregard of the prerogatives of local governments.

In time the actual warfare came to an end and the colonies became independent, but the conflict regarding central versus local government and individual rights continued. Although some argued from the beginning for a strong national government, the distrust of strong central government produced an over-reaction in the Articles of Confederation. The states of America, having freed themselves of tyranny, had no appetite for submission to any central authority, with a weak confederation being the result.

Eventually, the ineffectiveness of the confederation and the practical needs of the nation brought the states and people to the Constitution of the United States. In the Constitution they ceded limited authority to the federal government, but nonetheless sufficient to bind the states into a unified nation. Nevertheless, the battle raged between the federalists and the republicans as to the proper balance between the central government and the states. The states not only reserved their traditional rights and powers as independent states, except as ceded in the Constitution, but also  demanded the immediate amendments in the Bill of Rights to assure that the natural rights of their citizens would be protected. Even though the federal government gained power, the distrust of the center remained strong.

The ratification of the Constitution and the Bill of Rights did not end the war. It continued to surface in different venues and issues such as the national bank and the role of the Supreme Court, occasionally with manifestations of civil unrest. The power of the federal government to restrict or end slavery in the states, however, eventually again brought the war between opposing concepts of national authority to a battle of arms. That the states were defending their right to enslave, when doing so was morally indefensible, muddies to this day the point that the Civil War resulted from a country  split on the constitutional roles, rights, and powers of the states and the federal government. The Civil War may have resolved by force of arms the battle over slavery, but it did no more than force below the surface the controversy over the proper role of the federal government. That aspect of the war did not end.

With the end of fighting in the Civil War, most citizens of the United States returned to a life where the government of the United States rarely had direct contact with them. Their state and local governments remained the primary forces in their lives. With the advent of the Progressive Movement toward the end of the 19th century, however, support grew for governmental intervention in society in ways previously unthinkable. Enthusiasm grew not only for dominance of the federal government over states, but also now for direct intervention in ways that impacted individuals. Social engineering by the governments, federal, state, and local, began to gain favor.

World War I brought the Progressive Movement into the federal government. The Depression, World War II, and the Cold War brought the ascendancy of the federal government as the dominant force in America. But the Great American Civil War continued. The entirety of the Twentieth Century was marked by the ebb and flow of the power of the federal government, such as the Reagan Revolution following the Great Society. The trend, however, has been unmistakably toward increasing action of the federal government in the lives of individuals and the diminishment of the role of the states as more frequently actors implementing federal directives than independent entities.

The passage of health care reform marks the latest battle in the Great American Civil War. It marked a completely partisan division regarding the most significant legislative change to the United States in almost a century. But we have not seen such a marked division regarding the role of the federal government since the conflict degenerated to a shooting war in the 19th century. We are a deeply divided nation regarding fundamental issues. History teaches that with such a clear divide in the  country we are in dangerous times.

Some states filed legal challenges as soon as the legislation was signed by President Obama to contest the constitutionality of the personal liberty intrusion of the individual insurance mandate and the infringement on states’ rights presented by the Medicaid mandates and special deals. Beneath the tip of that iceberg lies a multitude of issues that have frustrated and angered protaganists on all sides of the issues. The catalyzing issues may not be slavery, quartering of soldiers, or unjust taxation (ok the taxation theme is a constant), but the core of the contest follows a straight line back to the Revolution. Will we permit the central government to infringe our natural rights and arrogate power to itself that belongs to local governments?

Congressman Thaddeaus McCotter of Michigan succinctly summarized the division, and its seriousness, in a speech on the floor of the House of Representatives regarding the health care reform. He is worthwatching.

McCotter speaks eloquently to the transformation of the federal government in the eyes of Americans to the status of a ruler to be opposed. Substitute “King George” for “President Obama” and his speech could easily have been one delivered before the Continental Congress instead of just days ago in Washington.

Never in our history has the government of the United States attempted to force a citizen, under penalty of a fine, to purchase a good or service. The constitutional power to regulate commerce between the states simply cannot be so distorted to permit such a bald exercise of power over individuals. But if that is permitted to stand the war is over regarding individual liberty. If the government has the power to do that, then it can force us to do just about anything. It can tell us what cars to purchase, what food to eat, what books to purchase…..anything. And if it can fine us if we do not comply, then it can jail us also. The power to penalize is the issue. Once the power is affirmed, the nature of the penalty is only a question of degree.

The power of the federal government to force the states to expend money and act toward their citizens in ways they choose not to act is equally suspect constitutionally. Years ago I studied the Tenth Amendment and wrote a law review article regarding it. That the founders of our country did not intend the federal government to have such power is manifest. It is beyond historical dispute. The states, however, have for so long acquiesced in such an arrogation of power by the federal government as a matter of fact, contrary to the Tenth Amendment, that the actual strength of the concept of limted powers embraced within the amendment is now legally ambiguous.

So the battlefront in the Great American Civil War now turns to the courts and the ballot box in November and 2012. The courts, however, are themselves instruments of the federal government and have a long record of expanding the powers of the federal government far beyond the stated limitations of the Constitution, at the expense of states and individuals. There can be no confidence that they will not do so again. So citizens who value their freedom must be prepared to fight this battle at the ballot box and reverse this action. For if it stands, the war will be lost. For the power of the federal government will be without bounds.

A final word of warning. The news today is filled with hysteria regarding some acts of minor violence and threats toward representatives. Everywhere people of all political stripes condemn it as not characteristic of Americans. That is utter nonsense. We are a violent people who have had few reservations throughout our history of resorting to violence and warfare, domestically and internationally, in defense of our liberties. We are not Europeans with a history steeped in submission to authoritarian governments who surrendered meekly to democratic socialism. Individual liberty runs deep in the fiber of Americans.  To dismiss the potential of serious violence, from either side of the conflict, is foolish and historically ignorant.   The Great American Civil War has already produced two battles of arms and numerous incidences of civil unrest. We should not assume that it will end with a whimper if this battle in the courts and the polls ends in defeat for the opponents of central authority. This great conflict has resulted in violence before and it can happen again. That is the climax that I fear, but pray will not occur. History has not ended, however, and human nature has not changed. We must be vigilant.

 

 

 

 

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