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Why it's so hard to pass health-care reform

By Charles Lane  |  January 20, 2010; 3:17 PM ET

Scott Brown’s victory in Massachusetts could be the end of the road for comprehensive health care legislation. If so, it would give a whole new meaning to President Obama’s address to a joint session of Congress last Sept. 9, in which he vowed that, although he was not the first President to seek universal health care, “I am determined to be the last.”

Everyone has his own explanation for the fact that the U.S. still doesn’t have a national health plan while all the other industrial democracies do. Here’s mine: The constitution.

I don’t mean that Obama’s plan, or any other, actually violates the constitution. Perhaps Congress lacks the authority to impose an individual mandate. Or perhaps not. I mean that the whole effort to create a new national health insurance system all at once flies in the face of this country’s quirky but durable 18th-century political structure. The Obama plan isn’t so much unconstitutional as it is counter-constitutional.

For better or worse, our founding document disfavors comprehensive national legislation of any kind -- let alone bills that seek to reconfigure 17 percent of the economy. This was intentional, of course. The Framers wanted to create a government that would protect the new country from foreign threats and foster trade among its constituent parts, but would not threaten liberty, which they defined as the freedom of individuals, states and localities to govern themselves.

To them, the main threat to liberty would come from the capture of the new political apparatus by a minority faction, or even by an overweening majority. So they built a system to play factions off one another: a bicameral legislature whose two Houses had different powers and were elected according to different principles of representation; frequent elections so that officials live in constant fear of public opinion; and a sharp separation of powers among the legislative, executive and judicial branches.

"While all authority in it will be derived from and dependent on the society,” James Madison memorably wrote of the new system, “the society itself will be broken into so many parts, interests and classes of citizens that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority."

In short, the Framers designed a federal government to make policy, when it did, that fit the lowest common denominator of regional, state, economic and other interests. This is very different from the national parliaments that rule Europe and Japan in a more centralized, majoritarian fashion.

To be sure, the Framers’ motives included protecting the “liberty” of Southerners to hold slaves. Nevertheless, their framework has endured unto this day. That is why Congress has so rarely even tried to enact a peacetime legislative package as sweeping as the current health proposal. The original Social Security and Medicare laws don’t even compare. The Kansas-Nebraska Act of 1854, which tried to fix slavery and secession once and for all, was pretty grandiose. But we all know how well that worked out. The American political system’s tilt against comprehensive national legislation, even in times of crisis, is the stuff of high school civics; in hindsight, it should have been more obvious to the men and women in the administration who staked so much on health-care reform.

“To see what is in front of one’s nose needs a constant struggle,” George Orwell wrote. But, he added, “sooner or later a false belief bumps up against solid reality, usually on a battlefield.” Or, in this case, at the ballot box.

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