What is the Common Good? Why the Supreme Court's Ruling on Obamacare is an Opportunity for a National Civics Lesson

In civics class we learn that federal courts decide whether laws passed by Congress and the state legislatures are constitutional. Therefore the federal courts are the guardians of our Constitution. That is certainly true, but it not the whole story. In fact, the most important function of the federal courts is to legitimate state building by the political branches...

Some have called Roberts' opinion statesmanlike, putting aside personal ideology to apply the law. Others have called it clever, handing conservatives an ideological victory while giving Democrats a policy result they like. My own view is that the Court as a whole performed the traditional function of federal judges in our constitutional system. The political branches sought to build out the American state and change the terms of the American social contract. The Court legitimated this result, but set new ground rules for politics going forward.

What does the decision mean in terms of constitutional doctrine? Much will depend on who wins the next several presidential elections.

As expected and fitting given its importance, the Supreme Court decision upholding the Affordable Care Act (the "ACA" or what conservatives have derisively labeled "Obamacare") has generated much national discussion. For all of the partisan hackery, hysterics, bloviating, right-wing madness and appeals to a Civil War, as well as orgasmic histrionics, there are some really smart people, who are saying some really smart things about the Supreme Court's decision--and what the debates surrounding the Affordable Care Act tell us about American politics and political culture.

[There is so much good stuff out there on this issue; please do send in your reading suggestions as well.]

The Supreme Court's decision upholding the ACA is a lightning rod for the deep divides of party and ideology in the United States where one person's belief that it is reasonable, long overdue, and ethically justified to provide a modest extension of the social safety net through the ACA, is another person's tyrannical decision by "big government" to usurp their individual rights and liberties. These fractious moments--if folks can get past the yelling and reason interfering with emotion--are actually opportunities to conduct a national civics lesson.


In school, we all should have encountered such concepts as federalism, the social contract, tacit and active consent, separation of powers, tyranny, negative and positive freedom, and liberty. Hopefully, we all read the Constitution, The Federalist Papers, The Second Treatise on Government, and the Bill of Rights. If we had good teachers, they explained that these were not just empty words and ideas. They were part of our political common sense and form a taken for granted set of guidelines for American democracy that influence our culture to the present.

In the aftermath of the Court's ruling on the ACA, it is nice to see these first principles and concepts creeping back into our public discourse. As I often signal to whenever given the opportunity, an appeal to the social compact (we have an obligation to one another in political community and society; there is a bargain of rewards, burdens, and obligations which citizens have subscribed to) should be central to how we make sense of our present, and in many ways much exaggerated, divides of ideology and party. 
 
Writing for the Atlantic, Jack Balkin, of the Yale Law School, signals to this all too overlooked concept (and also gives a nice lesson in American political development) as he details how:

Whenever the federal government expands its capabilities, it changes the nature of the social compact. Sometimes the changes are small, but sometimes, as in the New Deal or the civil rights era, the changes are big. And when the changes are big, courts are called on to legitimate the changes and ensure that they are consistent with our ancient Constitution. In this way, courts ratify significant revisions to the American social contract...

But the important point is that, here again, Roberts is both legitimating and redefining the new social contract in a more conservative way.

While partisanship is used to divide us into camps, the American political tradition, with a few quite notable exceptions (the Civil War; a Tea Party Ayn Rand Conservatism that is extremely radical and prone to overturning long-standing standing political bargains), has been governed by a type of consensus liberalism. Simply stated, because of how voting is structured in America's style of representative government, the major political parties in the modern era have tended to be more alike than they are different.

There are notable and substantive differences between the two parties. But, these differences are often exaggerated and used by elites, and the pundit classes, for immediate and personal gain by motivating the masses to do their bidding. Core American values are not immune from these manipulations. The use and abuse of American exceptionalism, what is a cultural myth and a necessary lie, is one such talking example.

Working through the power of this political intoxicant, and how it has been skillfully marshaled by conservatives as a cudgel against their foes through appeals to crude nationalism and ugly populism, Salon's Is America More Exceptional Today than in 1776? skillfully triangulates American exceptionalism with the health care debate:

We Americans misconstrue a lot in presuming that we know what 18th-century men thought about when they invented a nation that was joined to the transcendent value of human liberty. The founders’ vocabulary was different from ours. They invoked a word we don’t use much anymore – magnanimity – when they spoke of the generous concern meant to underlie the relationship between individuals, or between the government and its citizens. The new republic was to advance social harmony, which unequal governments (monarchy, aristocracy) did not...

It almost sounds as though, in affirming Americans’ rights to happiness and security, Jefferson was promoting universal healthcare for citizens. Fairness, the voice of justice, magnanimity – it sounds like the progressive script in 2012. The moral impetus is inherent in the language of the Declaration, but government has to balance the practical against the good. As in 1776, Americans today are still asking: What should government do in order to provide comfort to those it governs? What should it not do? When does magnanimity become too much government?

For Thomas Jefferson, America did not become exceptional on July 4, 1776.  He and the other founders attached themselves merely to the promise of what America could become as a nation distinct from others. Exceptionalism was certainly not automatic, which is what today’s Republicans overlook when they attack President Obama (as Romney is wont to do) for not believing ardently enough in exceptionalism. It has become like a religious test – which, incidentally, Romney should be sensitive to, given that the Mormons of the late 19th century, prosecuted for the practice of polygamy, invoked the name of Thomas Jefferson in praying for inclusion in the American community.

The founders were not bewigged prophets. They did not grant posterity something called American exceptionalism on July 4, 1776. They were fighting a war, and they needed to define their purposes convincingly – in part to attract political recognition from the greater nations of Europe.

The pragmatic nature of the origin myth known as American exceptionalism is often forgotten. Just as in the intellectually empty phrase "support the troops," citizens are socialized into thinking uncritically about the claim that America is unique, special, and endowed with superpowers and special responsibilities relative to the other nations of the world.

Unfortunately, a belief in American exceptionalism has become a quasi-religious litmus test for American elected officials.

Conservatives and liberals hold on to different core fictions necessary to sustain their political narratives and beliefs. They reproduce and share these stories in order to create a sense of shared values, meaning, and culture.

As recent research has suggested, differences in political values are also biological and rooted in brain structure. Conservatives, in particular the petit authoritarian variety common to the Tea Party GOP of today, quite literally see the world (including the realm of facts and reason) differently than progressives, moderates, liberals, or traditional Republicans of the near recent past. The divergent responses to the Affordable Care Act, and the Court's decision supporting its constitutionality, are examples of these deep divides in political worldviews and values.

As I have pointed out on a number of occasions (and will not go into in great detail again here), the Right's response to the Age of Obama is a function of naked racial hostility, tribalistic White nationalism, and a crude version of Ayn Randian libertarianism which is legitimized by a twisted brand of Christian Evangelicalism and End Times Dominionism-Eschatology in the guise of a political death cult.

This is near sociopathic behavior that is premised on a strict divide between "us" and "them," "those people" and "real Americans." In all, I would suggest that the debate about health care reform in this country is ultimately about the primacy which should be afforded to an ethic of care and concern in American society--and the role of the government in balancing and following through on such values.

However, could the Right's rage at "Obamacare" and extending the social safety net in the interest of basic human rights, also be rooted in deeply historical divides of region, race, and identity shared by the New Right, the Tea Party GOP, and the country's plutocrats?
 
Sara Robinson would seem to think so. Her essay, "Conservative Southern Values Revived" argues that the odd mix of vicious intolerant populism and plutocratic zeal that is the contemporary Republican Party, is really a reflection of how the descendants of the Southern slaveocracy and planter class now have an outsized influence on 21st century American society and culture. She writes:

In the old South, on the other hand, the degree of liberty you enjoyed was a direct function of your God-given place in the social hierarchy. The higher your status, the more authority you had, and the more "liberty" you could exercise -- which meant, in practical terms, that you had the right to take more "liberties" with the lives, rights and property of other people...

When a Southern conservative talks about "losing his liberty," the loss of this absolute domination over the people and property under his control -- and, worse, the loss of status and the resulting risk of being held accountable for laws that he was once exempt from -- is what he's really talking about. In this view, freedom is a zero-sum game. Anything that gives more freedom and rights to lower-status people can't help but put serious limits on the freedom of the upper classes to use those people as they please. It cannot be any other way. So they find Yankee-style rights expansions absolutely intolerable, to the point where they're willing to fight and die to preserve their divine right to rule...

From its origins in the fever swamps of the lowland south, the worldview of the old Southern aristocracy can now be found nationwide. Buttressed by the arguments of Ayn Rand -- who updated the ancient slaveholder ethic for the modern age -- it has been exported to every corner of the culture, infected most of our other elite communities and killed off all but the very last vestiges of noblesse oblige.

It's not an overstatement to say that we're now living in Plantation America. As Lind points out: to the horror of his Yankee father, George W. Bush proceeded to run the country exactly like Woodard's description of a Barbadian slavelord. And Barack Obama has done almost nothing to roll this victory back. We're now living in an America where rampant inequality is accepted, and even celebrated...

The rich are different now because the elites who spent four centuries sucking the South dry and turning it into an economic and political backwater have now vanquished the more forward-thinking, democratic Northern elites. Their attitudes towards freedom, authority, community, government, and the social contract aren't just confined to the country clubs of the Gulf Coast; they can now be found on the ground from Hollywood and Silicon Valley to Wall Street. And because of that quiet coup, the entire US is now turning into the global equivalent of a Deep South state. 

There are several basic questions which tie together my to contextualize the debates surrounding the Affordable Care Act, and the broader political moment of which they are a part.

What is the Good Society? Once we answer this question, we must then ask two related ones. What is the Common Good? How do we understand the Social Compact?

In turn, our answers to these questions will explain the wildly different responses that populist Right-wing conservatives, progressives, and moderates have to the Affordable Care Act. Perhaps, despite a shared political culture, Republicans and Democrats do in fact reside in radically different social, political, and historical realities.