When the Justices hand down their ruling, it will be a decisive moment in a debate stretching back to the Articles of Confederation and the nation's founding.
When I was growing up in central Virginia, corner stores typically sold hats emblazoned with the Stars and Bars declaring "Lee Surrendered but I Didn't." I never imagined that five men in black robes might hand Confederates a victory through the Supreme Court that they could not win at the original Constitutional Convention nor later on the battlefields of the Civil War.
Yet we may be at that juncture today. As our country anxiously awaits the Supreme Court's verdict on health-care reform, the media has reduced the case to the narrow terms of a political horserace. This characterization ignores the enormous significance of this case -- a shift from the modern fight between liberal and conservative Constitutionalists back to an older and more nationally divisive debate between Constitutionalists and Confederates.
From the Articles of Confederation to the Constitution of the Confederate States of America to the Lochner-era Supreme Court, confederationists have long believed in a United States consisting of states loosely united by a small, weak central government, and they have fought for more than 230 years to prevent, undermine, and erode the Constitution. While the term "Confederate" rightly conjures up America's sin of slavery and the racially charged movements for states' rights and state nullification, the present-day confederationists include conservative libertarians and corporatists who support a central government too weak to regulate or tax commerce.
This vision of a tiny, powerless central government has always been at odds with the U.S. Constitution, a document our nation's founders wrote explicitly to reject and replace the Articles of Confederation. George Washington once wrote that the weakness of the Articles, which lacked the Constitution's power to tax and spend for the general welfare, almost cost us the Revolutionary War. Disconnected and self-interested, the states struggled to harness the unity and cooperation necessary to defeat a world superpower.
Confederationists have fought for more than 230 years to prevent, undermine, and erode the Constitution.
The Founders addressed this by writing a Constitution that empowered America to "legislate in all cases for the general interests of the Union." Since the Constitution's creation, American leaders have enjoyed the power necessary to solve national problems, whether those problems were a Depression in the 1930s, a system of racial apartheid in the 1960s, or a costly and inadequate healthcare system in 2010.
But the Confederate legacy also lives on. As Elizabeth Wydra of the Constitutional Accountability Center notes, "The Tea Party's version of the Constitution has far more in common with the failed Articles of Confederation ... than with our actual, enduring U.S. Constitution." The Articles famously lacked our Constitution's commerce power. Similarly, the Confederate Constitution stripped the federal government's authority to "provide for the ... general welfare," from provisions relating to taxation and eviscerated the interstate commerce clause. These limitations would have likely doomed not only the Affordable Care Act, but also major federal programs such as Medicare and Social Security.