Would the Founders Love ObamaCare?

Daniel Henninger
Wall Street Journal

The resistance to ObamaCare is about a lot more than the 10th Amendment.

The left-wing critics are right: The rage is not about health care. They are also right that similar complaints about big government were heard during the New Deal and the Great Society, and the sky didn't fall.

But what if this time the sky is falling—on them.

What if after more than a century of growth in the national government, starting with the Progressive Era, the American people are starting to push back. Not just the tea partiers or the 13 state attorneys general seeking protection under the 10th Amendment and the Commerce Clause. But something bigger than that.

The Democratic left, its pundits and academics criticizing the legal challenges to ObamaCare seem to be arguing that their version of our political structure is too big to change.

That's not true. The American people can and do change the nation's collective mind on the ordering of our political system. The civil rights years of the 1960s is the most well-known modern example. (The idea that resistance to Mr. Obama's health plan is rooted in racist resentment of equal rights is beyond the pale, even by current standards of political punditry.)

Powerful political forces suddenly seem to be in motion across the U.S. What they have in common is anxiety over what government has become in the first decade of the 21st century.

The tea party movement is getting the most attention because it is the most vulnerable to the standard tool kit of mockery and ridicule. It is more difficult to mock the legitimacy of Scott Brown's overthrow of the Kennedy legacy, the election results in Virginia and New Jersey, an economic discomfort that is both generalized and specific to the disintegration of state and federal fiscs, and indeed the array of state attorneys general who filed a constitutional complaint against the new health-care law. What's going on may be getting past the reach of mere mockery.

Constitutional professors quoted in the press and across the Web explain that much about the federal government's modern authority is "settled" law. Even so, many of these legal commentators are quite close to arguing that the national government's economic and political powers are now limitless and unfettered. I wonder if Justice Kennedy believes that.

Or as David Kopel asked on the Volokh Conspiracy blog: "Is the tax power infinite?"

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