(Centennial Fellow) The current controversy around Obamacare echoes the debate over ratification of the Constitution in 1787-88. Contention then centered on how the government would obtain and maintain the sufficient support of the people, while at the same time protecting the people’s liberties. Both the Federalists and the Anti-Federalists agreed that this indeed was the proper role of government. Their disagreement lay in how best to constitute a government to achieve these desired ends. For government to be legitimate, it must maintain a voluntary attachment and obedience to the laws.
For the Federalists, a new theory of government – the “extended compound republic” – was believed to be the solution to these challenges. By introducing a diversity of opinions from a large geographical expanse (made possible by representative government), the Federalists believed that laws passed by elected officials would only be passed with the widespread support of a clear majority of the people. At the same time, laws harmful to the rights of the people would be very difficult to pass through the layers of checks and balances established in the compound republic. Finally, the Federalists argued that a system of “dual sovereignties” was created by the Constitution of 1787, with distinct powers held by the states and other distinct powers given to the national government. This division of power provided the necessary balance and security for the individual citizen’s liberties.
The Anti-Federalists were highly skeptical that this new science of government crafted by Madison and his fellow convention delegates would satisfy either of these significant concerns. Simply having elected officials who were to represent the interests of the people in the national government was seen as no security at all to the opponents of ratification. In fact, Robert Yates, a New York judge writing under the pseudonym Brutus, argued that the people “will have no confidence in their legislature, suspect them of ambitious views, be jealous of every measure they adopt, and will not support the laws they pass.” Brutus suggests that rather than having the voluntary attachment to the laws – because they reflect a majority will of the people – the people will instead be highly skeptical of them.
When the people are skeptical of their laws, they will have neither a voluntary attachment nor a voluntary obedience to them, which leads to the second great concern of the Anti-Federalists: when the people don’t voluntarily support the nation’s laws, they will necessarily be coerced or forced to obey them. Richard Henry Lee, a leading founder, noted that when public opinion is not behind our laws, “force then becomes necessary to secure the purposes of civil government.”
Finally, the Anti-Federalists did not accept the argument that “dual sovereignties” could be long maintained. Inevitably, they would tend in one direction or the other, and the Anti-Federalists were certain that this tendency would ultimately move away from the states in favor of the national government.
The historic debate on protecting liberty and ensuring popular legislation was not resolved in 1787—indeed it holds great relevance for us today. Health care reform is a present-day example reflecting the very real concerns of both the Federalists and Anti-Federalists of whether laws would be passed with widespread support – ensuring voluntary attachment and obedience to them – and whether or not our liberty is secure. The most recent Rasmussen survey finds that 54% of respondents now favor repeal of the Health Care Reform. In the analysis of the poll they find that:
** Fifty-nine percent (59%) of voters think the plan will increase the deficit despite assurances from the plan’s supporters that just the opposite is the case.
** Twenty-two percent (22%) say the quality of health care in America will get better under the new plan, but 52% think it will get worse.
** Fifty-six percent (56%) believe the plan will cause the cost of health care to go up.
It is quite clear that this law fails the test of widespread support. And when individual citizens are forced to purchase health insurance at the risk of being fined, there is indeed a new threat on our liberty. Brutus and Lee’s worst fears appear to have been proven true: law in this instance does not reflect the will of the people and force will be necessary in order to secure obedience.