By Jon C. White, MD

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When people mention the Constitution and the Affordable Care Act (ACA) in the same sentence, they are usually commenting on the legality of the ACA and whether its methods are consistent with laws either contained or derived by the Constitution. This commentary usually comes in the form of a tribute to the legislative genius behind the ACA or a vitriolic denunciation of the scoundrels who trampled the U.S. Constitution. This editorial is neither. Rather, it is a reflection on how these two documents have historical similarities, suggesting that the ACA will ultimately be accepted and fine-tuned like the Constitution. On the other hand, their dissimilarities point out certain critical weaknesses of Obamacare.

How the ACA Is Like the Constitution

The U.S. Constitution was negotiated and written over the course of four months by the Second Constitutional Convention. It was based on the core principles of natural rights, espoused by the English philosopher John Locke, and republicanism, championed by the French philosopher Montesquieu. Although the convention had drafted a constitution by fall 1787, it did not become the law of the land until 1789 when the required nine states had ratified it. The final state to ratify, Rhode Island, took three years to elect delegates who at first rejected but finally accepted the Constitution. For many, it was the first time they had experienced the concept of bending to the will of the people and not to the will of a capricious and arbitrary monarch.

Does this all sound familiar? The ACA also was negotiated and written over the course of months and, like the Constitution, it is based on a core principle; this time it is universal or near-universal health care coverage. It gained enough support by 2010 that it became law of the land, but three years later it is still being debated and challenged in courts. Only about half of the states are fully on board with some of its basic strategies such as Medicaid restructuring. There are many in the country who have not yet signed on and are bending to the will of the people. After 200 years, however, the will of the people is not a novel concept and has become an important part of the democratic process.

As the Constitution was being ratified, there were two factions at work: the federalists who believed in a strong central government and supported the Constitution and the anti-federalists who were suspicious of an over-reaching government and were concerned about the potential for tyranny by a central authority. After circulation of early drafts of the Constitution, articles began to show up in the most widely circulated newspapers of the day that were critical of its powerful central authority. James Madison, Alexander Hamilton and John Jay launched a counteroffensive in the form of the Federalist Papers, a series of skillfully written essays explaining and defending both federalism and the Constitution. These essays, also circulated by the lay press, are now considered some of the most astute political writings ever published.

Today, members of the Democratic Party, who support a strong central government, might be considered modern-day Federalists. Republicans, on the other hand, are suspicious of “big government” and in this regard are more like the anti-Federalists. The media outlets these days regularly air these dissenting points of view regarding the ACA. Unfortunately, this is one area where the current debate falls short of the Constitutional debate. The philosophical depth and erudition of the Federalist Papers puts to shame the caterwauling on TV and in the press today that passes for intelligent discussion about health care.

Why the ACA Is Not Like the Constitution

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When the U.S. Constitution was finally completed, it was three pages long and the Bill of Rights added a fourth. It could be read in half an hour and both its underlying principles and intent were clear. It created the process by which we are governed, how decisions are made and how our body of laws could be added to and amended. Using its formulas, our laws have been greatly expanded and are recorded as the U.S. Code of Laws, which is published every two years and currently contains 200,000 pages.

The ACA, at 1,900 pages, is almost unreadable, and its true intent is still opaque. House Speaker Nancy Pelosi’s comment that we will have to pass it to see what is in it has turned out to be prophetic. In its three-year history, we are witnessing not a gradual accretion of functionality as we have with the Constitution, but a systematic deconstruction of its content. I think that part of the confusion lies in its poorly chosen title. Most of its strategies are designed to increase coverage although its title seems to suggest that it addresses affordability. Affordability is the weakest argument for the ACA, and whether it will be more or less expensive is largely unknown and much debated. Its proponents should cling to the reality that it insures more people rather than try to convince a skeptical public that it is less expensive.

There is another point that distinguishes the ACA from the Constitution. When the Constitutional Convention was proposed, most proponents agreed that the purpose of the convention should not be to amend or fix the Articles of Confederation, but to create an entirely new government based on the philosophical principles of democracy and republicanism. The architects of the Constitution were not new to this task. Each of the 13 colonies had already drawn up its own version of a constitution after independence and those who framed the U.S. Constitution had been engaged in similar efforts for more than 10 years. Starting with only philosophical principles and theories of political science, they presented their arguments, debated and ultimately arrived at compromises. The end product was a document that has created the longest-standing and most successful democracy in the modern world.

By contrast, the ACA was intended to make small adjustments to the existing system rather than consider a new vision. In my view, this is its greatest fault. Our health care system is functioning at present but headed for a precipice. A minor adjustment will not change its course quickly or sharply enough. At this moment we should be thinking along the lines of the Constitutional Convention. We could start with core principles such as universal coverage, competition, personal financial incentives, promotion of prevention, and so on, and create a new health care system that would be the longest-standing and most successful in the world.

History Will Be the Judge

The principles of the Constitution have remained intact for more than 200 years. The details of how these principles are applied have been amended, added to and sometimes subtracted from and have resulted in the U.S. Code of Laws. I think that the underlying principle of the ACA, near-universal coverage, will be preserved. We will not go back to having 15% of the population uninsured and, in this regard, the ACA has been a great accomplishment. The particulars of how we do it, such as government subsidies, tax incentives, insurance exchanges, changes in Medicare coverage and mandatory participation are being debated. They are being challenged in state courts, the Supreme Court and in the court of public opinion. Some of these details will be retained, some will be altered and others will be abandoned. It is, simply put, democracy at work.

On the other hand, I think that the ACA is a band-aid approach to a much larger problem. Opinion is divided as to whether it will increase or decrease the expense of our health care system. Opinion is less divided on whether it will solve our main problem, which is the approaching insolvency of our health care industry and the government that it will drag down with it. Most people recognize that it does not address the fact that we spend twice the percentage of gross domestic product on health care than most Organization for Economic Cooperation and Development (OECD) countries and achieve no better health care results.

Fortunately, the ACA is like the Constitution in some regards but, regrettably, it is not in others. Both documents were written in response to significant national problems. In the 1780s, the Articles of Confederation had not created a central government with the authority to negotiate international treaties, establish a national military or even levy taxes to pay for its minimal role. People were suspicious of central authority, however, because they had just fought for their independence from a colonial power that they considered tyrannical. The Constitution had to address these two competing problems. In the same way, the ACA was written to address two competing problems: the lack of access to the health care system by an increasing percentage of the population and the unsustainable cost of this less-than-adequate coverage. The Constitution solved its dilemma with negotiated strategies such as separation of powers and checks and balances. The ACA does not seem to have struck such a successful balance. Although it does increase coverage to almost all of the population, its effect on health care spending and the economy is unknown. Some argue it will slow health care inflation, whereas others insist it will make the economy worse.

Regardless of which argument is correct, the small way in which the ACA affects health care spending will not come close to solving the problem of its unsustainable economics. We can’t just amend our current system. We should get our best minds together in a room in Philadelphia for another four months. This time they can come up with an entirely new plan that incorporates centuries-old economic and political philosophies as well as the realities of our rapidly changing health care demographics. That kind of a health care plan would truly be constitutional.


Dr. White is Professor of Surgery, George Washington University, Chief of Surgical Services, VAMC, Washington, DC.