History Frowns on Health Care Challenges

Historian Stanley Kutler puts the health care legal challenges by 14 state attorneys general in their proper historical context: The attorneys may be hoping for an assist from a radical and conservative Supreme Court, but such a decision would overturn centuries of law going back to John Marshall in 1821 and earlier.

Stanley Kutler on The Huffington Post:

The history of state resistance is a minor stream of the past; states never have successfully mounted a challenge to federal supremacy. The attempts to do so occurred before 1860, at a time when a variety of centrifugal forces – political, economic, and social -threatened the integrity of the Union. But the force of arms in the Civil War assured the triumph of American nationalism, cementing the bonds of nationhood. The dubious doctrines of nullification disappeared into the ashcan of history. Calhoun, however, occasionally is resurrected, and now appears in the Republican guise of Sen. Jim DeMint (R-SC), who has reached into the ashcan to resurrect state interposition against the new health care law.

John Marshall, our first great Chief Justice, and a man intimately related to the ratification of the Constitution, methodically dissected and rejected notions of state sovereignty and interposition in an 1821 opinion. Marshall realized the stakes if such doctrines prevailed. With words today’s state attorneys general might ponder, Marshall said that “America has chosen to be, in many respects, and to many purposes, a nation . . . . The people have declared that in the exercise of all powers given for these objects, it is supreme.” He concluded by citing the “supremacy clause:” “These States are constituent parts of the United States. They are members of one great empire – for some purposes sovereign, for some purposes subordinate.”

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