How Founding Fathers helped argue the health-care case at the Supreme Court

The clash of ideas at the core of the Supreme Court debate over Obama?s health-care law is as old as the nation itself, and the spirit of the Founders was present before the assembled justices.

US Supreme Court justices probably don?t believe in ghosts, but in the extraordinary arguments conducted this week at the high court could be heard the voices of the Framers of the Constitution.

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It wasn?t just Solicitor General Donald Verrilli, or Washington lawyers Paul Clement and Michael Carvin, at the lectern before the assembled justices.

With them in a courtroom crowded with members of the Senate and House, scholars, and lawyers were some of the most outspoken leaders of the founding generation.

If one listened closely their spirit was unmistakably present. With Mr. Verrilli stood Alexander Hamilton, a New Yorker, Treasury secretary, and champion of a national government powerful enough to shape its economic future.

With Mr. Clement and Mr. Carvin stood James Madison and Thomas Jefferson, both presidents, Virginians, and champions of an experimental form of self-rule in which the national government would be limited to specific areas of nationwide concern, leaving most power to the states and to the people.

To be sure, the case on Tuesday involved the constitutionality of President Obama?s health-care reform law ? specifically its mandate that all Americans purchase a government-approved level of health insurance or pay a penalty.

But it was also about something more fundamental, a fierce clash of ideas, dangerous enough to spark a civil war, and as old as the nation itself.

It involves conflicting visions of the constitutional structure of the government ? the proper balance of power between the national government, the states, and the people.

Among the justices of the Supreme Court today this debate is most recognizable in the contrasting views of Justices Stephen Breyer and Antonin Scalia.

In Tuesday?s argument, Justice Scalia asked the solicitor general how the federal government?s assertion of a power to order Americans to buy health insurance comports with a constitutional system that requires a federal government of defined, enumerated powers.

?The federal government is not supposed to be a government that has all powers ? it?s supposed to be a government of limited powers,? Scalia said.

?That?s what all the questioning has been about,? he told the solicitor general. ?If the government can do this, what else can it not do??

Verrilli said the government was not claiming a broad power to order Americans to buy a commodity like broccoli or a cellphone, it was just regulating the existing health-care market.

Hoping to assuage concerns of the conservative justices, Verrilli said the federal government did not have the power to create commerce that did not previously exist by ordering Americas to engage in a commercial transaction so the resulting commerce could be regulated.

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