When the debate turns into a cacophony of noise and people seem to be shouting over each other with arguments that twist and turn in upon themselves and degrade into mere name calling, it is time to return to the original concepts and reread the original text to grasp the foundational principles.
Thus it is with the debate over ObamaCare.
Though it carries the president’s name in the commonplace short-hand for the Patient Protection and Affordable Care Act, he had little to do with it. It was largely drafted by bureaucrats and congressional staffers and cobbled together in the U.S. Senate.
In Federalist Paper No. 62, published Feb. 27, 1788 in the Independent Journal in New York under the pseudonym Publius, James Madison explained the role and intended function of the Senate. Madison envisioned the Senate as more mature and more restrained than the House of Representatives. Senators held longer terms of office, had to be 30 instead of 25, and, instead of being voted on directly by the people, Senators would be appointed by state legislators and thus less likely to usurp state powers and authorities.
“Among the various modes which might have been devised for constituting this branch of the government, that which has been proposed by the convention is probably the most congenial with the public opinion,” Madison explained. “It is recommended by the double advantage of favoring a select appointment, and of giving to the State governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems.”
We upset that apple cart with the ratification of the 17th Amendment in 1913, which changed Senators to be directly elected by voters in each state.
Thus we have a Senate today in which the majority hold no qualms about aggregating all power to Washington and denigrating the power of the states to less than that of city councils.
Madison also believed the Senate’s cooler heads would be able to stand against 2,700-page behemoths of legislation like ObamaCare.
Scalia asked, “Mr. Kneedler, what happened to the Eighth Amendment? You really want us to go through these 2,700 pages? (Laughter.) … Is this not totally unrealistic? That we are going to go through this enormous bill item by item and decide each one?”
Breyer also remarked on the wide range of topics contained in the law, everything from breast feeding to black lung disease.
Madison not only was prescient enough to warn about laws so voluminous they cannot be read and so incoherent they cannot be understood, but also about special interest influence and the wretched fluidity of a meddling and out-of-control government whose policies and dictates swing without warning from pillar to post wrecking the nation’s economy because no prudent merchant can tell what will be lawful in the near future.
Here are the final paragraphs of Federalist No. 62. As they say in the movie trailers, “Snatched from the headlines”:
“The internal effects of a mutable policy are still more calamitous. It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?
“Another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising, and the moneyed few over the industrious and uniformed mass of the people. Every new regulation concerning commerce or revenue, or in any way affecting the value of the different species of property, presents a new harvest to those who watch the change, and can trace its consequences; a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow-citizens. This is a state of things in which it may be said with some truth that laws are made for the few, not for the many.
“In another point of view, great injury results from an unstable government. The want of confidence in the public councils damps every useful undertaking, the success and profit of which may depend on a continuance of existing arrangements. What prudent merchant will hazard his fortunes in any new branch of commerce when he knows not but that his plans may be rendered unlawful before they can be executed? What farmer or manufacturer will lay himself out for the encouragement given to any particular cultivation or establishment, when he can have no assurance that his preparatory labors and advances will not render him a victim to an inconstant government? In a word, no great improvement or laudable enterprise can go forward which requires the auspices of a steady system of national policy.
“But the most deplorable effect of all is that diminution of attachment and reverence which steals into the hearts of the people, towards a political system which betrays so many marks of infirmity, and disappoints so many of their flattering hopes. No government, any more than an individual, will long be respected without being truly respectable; nor be truly respectable, without possessing a certain portion of order and stability.”
Can anyone say this Congress or this administration possess order and stability?