The speech President Obama should give to America

With the “ObamaCare” litigation winding its way to the Supreme Court, the White House has prepared a coordinated defense of the Patient Protection and Affordable Care Act. Predictably, its efforts have focused on the act’s substantive merits, which include lower costs, expanded coverage and improved care. At the same time, the White House appears content to leave its constitutional arguments to its lawyers, therefore ceding the public debate over the law’s constitutionality to Republican leaders and their Tea Party allies. This is a mistake.

In times of constitutional controversy, many of our nation’s greatest presidents have taken their constitutional arguments directly to the American people. Indeed, presidents as diverse as Thomas Jefferson, Abraham Lincoln, Franklin Roosevelt and Ronald Reagan have each attempted to tie their substantive visions for America to our shared constitutional tradition.

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To date, President Obama has dabbled in this form of constitutional storytelling. He has not shied away from attacking the Supreme Court for its decision in Citizens United. Nevertheless, the president has spent precious little time defending the constitutionality of healthcare reform. With oral arguments less than a week away and a Supreme Court decision on the reform law looming, the president should not simply leave this constitutional debate to his lawyers — no matter how strong their legal arguments. Instead, our constitutional-law-professor president should answer his constitutional opponents directly and publicly, in an attempt to reclaim the Constitution for progressives. Here’s what such a speech might sound like:

“My fellow Americans, the Supreme Court will hear arguments next week on the constitutionality of the Patient Protection and Affordable Care Act. Over the last three years, I’ve told you why I thought the act was good for our country. Today, I offer a different argument. Not only do I believe that the act will lower healthcare costs, expand coverage and improve patient care, but I also believe that the act itself is consistent with the text and history of our Constitution.

“Ours is not the Tea Party’s Constitution. The Founders were no doubt concerned about the threat of tyranny. The British Empire had blockaded their ports, taxed their goods and spilled their blood. British soldiers had patrolled their streets, harassed their families and slept in their homes. And, throughout these trying times, the colonists had no voice in Parliament. Therefore, it’s little wonder that the Founders were concerned with designing a government that would secure the blessings of liberty to themselves and their posterity.

“However, the Founders were also interested in forming a federal government that worked. If the tyranny of George III was fresh in their minds, so, too, were the failures of the Articles of Confederation — a government incapable of raising revenue, promoting cooperation between the states or securing our infant nation. By ratifying our Constitution, the Founding generation wished to create a national government capable of addressing national problems — as they put it, problems that individual states were “separately incompetent” to address. Following the Civil War, a new generation amended our Constitution to further strengthen the federal government and to protect all Americans — black and white — from efforts to deprive them of their liberties and, in many cases, their lives. Since then, generations of Americans have used these powers to form a more perfect union.

“Abraham Lincoln and his generation used them to build an intercontinental railroad and pass the nation’s first civil rights laws. A century later, the Civil Rights Movement used them to eradicate Jim Crow and ensure equal voting rights for all. In between, Theodore Roosevelt passed food safety laws, F.D.R. established Social Security, Dwight Eisenhower built the interstate highway system and Lyndon Johnson created Medicare. Similarly, in 2010, our generation tackled a challenge that had bedeviled our parents, grandparents and great-grandparents alike — securing affordable healthcare for all.

“In short, over the last two centuries, each generation has built upon the achievements of its predecessors — all the while working within a constitutional framework inherited from Madison and Hamilton, Washington and Lincoln, Sumner and Bingham. In the years ahead, We the People must continue to strive for a more perfect union — one that protects each American’s God-given right to life, liberty and the pursuit of happiness.

“May God bless you, and may God continue to bless the United States of America.”


Donnelly is a Climenko fellow and lecturer on law at Harvard Law School who specializes in constitutional law.