Balkin Opens Pandora’s Box: Health Care, Constitutional Moments, the Constitution in 2020, and Privileges or Immunities

December 17th, 2009

At Balkinzation, Jack Balkin has a very interesting post about Constitutional Moments and Health Care.

Balkin argues that President Obama is faced with a Constitutional Moment because several moderate Republicans and moderate Democrats are blocking passage of his health care bill. 50 votes isn’t enough according to modern Senate procedures. In reality, the Senate needs 60 votes.

We are at such a moment now. The political impasse is over health care reform. The institution is the United States Senate. The question is whether the Democratic Party led by Barack Obama, will threaten unconventional adaptation so that the Senate (in this case, a small number of moderate Democratic Senators) will back down and allow passage of health care reform by a simple majority, creating a new precedent for Senate practices. If Obama does not make this threat credibly, opponents of reform will succeed and the Senate– and particularly the power of the Republican minority and Blue Dog Democrats in the Senate– will become more powerful than ever. It is, in other words, a match to the death between Obama’s promise of a new politics and the existing forms of politics.

Faced with such a Constitutional moment, what is President Obama to do?

Thus, time is of the essence. Obama must win big or he will surely lose bigger. It is time, in short, for unconventional adaptation. Obama and the Congressional Leadership have been pushed against the wall. They must win now or be decimated politically . . .  It is precisely these desperate circumstances that lead to unconventional adaptations in American politics.  If Obama can route around the 60 vote requirement through unconventional adaptation, and pass health care reform, he can go to the American public for ratification of his actions in the 2010 and 2012 elections. If he cannot do this, then he puts himself at the mercy of Joe Lieberman and Ben Nelson, which means a very watered down bill that may not pass because of opposition from his left.

While this unconventional adaptation would not truly be of a Constitutional nature, as the 60-vote requirement is a matter of procedure and not Constitutionally required, Balkin’s invocation of a “Constitutional Moment” in the health care debate falls into line with a prediction that Ilya Shapiro and I made in our article, Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment. We just uploaded a revised version to SSRN reflecting Balkin’s blog post. From page 51:

In contrast to the historical approach that this article advances, the landmark legislation/constitutional moment theory no longer restricts the Court to canonical texts like the Declaration of Independence or Blackstone’s Commentaries, but leads it to consider acts Congress passes to establish new privileges or immunities. Would there be a constitutional right to Social Security, to food stamps, to subsidized housing, to Medicaid—to health insurance (whether or not a “public option” ever passes)?  Professor Balkin would say yes—and even considers the potential passing of President Obama’s health care bill, over the opposition of stalwart moderate Democrats and virtually all Republicans, a “constitutional moment” forcing the president and the Senate to engage in an “unconventional adaptation of American politics.” Health care reform is precisely the type of landmark legislation that would create constitutional rights under The Constitution in 2020.

According to Ackerman and Balkin’s work, when Congress passes significant pieces of legislation, such as health care reform, this can generate a Constitutional moment. In our article, we contend that when such a moment occurs according to Balkin’s work, Congress essentially creates, or “instantiates” this right as a privilege or immunity of national citizenship. Once a right is protected as a constitutional right, it is permanently entrenched, and cannot be abrogated by future legislatures.

By not rooting the rights protected under the Privileges or Immunities Clause in our nation’s history and traditions, the Court can consider constitutional moments, national consensus, and social movements as signs that society recognizes new rights. This post presages Balkin’s future arguments if the Supreme Court fails to properly interpret the Privileges or Immunities clause in McDonald v. Chicago. If a public option passes, it will be of such monumental status that a right to health care will be considered a privilege or immunity of national citizenship, and thus a constitutional right. Pandora’s Box is no longer sealed.