Outrageous and silly -- but serious, too

We've been so inundated by the outrageous and silly shenanigans of the political side-show that it is hard to quite bring into focus the serious conversation that needs to be happening and that, indeed, may be happening somewhere underneath this morass.

The serious question that deeply divides this country is the role of the federal government in our lives. You would hardly know it from what grabs the attention of the news media, but as E. J. Dionne pointed out (quoted here on Sunday the 18th): "Most of the opposition to President Obama comes from people who are against his policies, not his race."

The confluence of a terrible recession, high unemployment, financial collapse, two wars, oil-spill disaster, immigration crisis, and a reform-minded administration with plans for regulating finance, health care, and energy -- all come together to arouse the fears of "too much big government," meaning too much federal government. It's not just about cutting taxes or putting the reins on Wall Street -- it's the larger picture of government control.

The conservative base doesn't even seem so single-minded anymore about abortion and gay rights. There was hardly a murmur from them about the recent court decision in Massachusetts that said that some parts of the Defense of Marriage Act are unconstitutional.

A New York Times editorial today focused this argument about the power of federal government as it is playing out in the opposition to Supreme Court nominee Elena Kagan's confirmation. What upsets Republicans the most about her (forget the "lack of judicial experience," and the faux-flap about military recruitment at Harvard) is that she refused to agree with their more limited interpretation of the commerce clause of the constitution.

What? The Commerce Claus? Think about it, the editorial says. The commerce clause gives the federal government the right to regulate commerce among the states. And this is at the heart of the argument over federalism. How much can the federal government force state governments to do or override state laws? It goes back to the States Rights rallying cry during the desegregation struggles. But it has gone far beyond that issue.

It is the liberal interpretation of the commerce clause that has been the legal basis for: The Clean Air Act, The Endangered Species Act, the laws that set minimum wages, the Civil Rights Act, and it is at the heart of recent controversial decisions about federal vs state laws about gun control and now about health care reform.

The next big test of this will come when the court has to decide whether the mandate that everyone purchase health insurance is constitutional. The Democrats were careful to insert the phrase in the bill that the insurance mandate "substantially affects interstate commerce." And the Republicans will be fighting that as a way of gutting the bill.

And this is why, according to this editorial, seven Republican members of the Judiciary Committee wrote to Ms. Kagan after the hearings demanding to know the extent of her involvement, as Solicitor General, with crafting and passing the health care reform bill.

What they are hoping is that there will be a basis for them to demand that she recuse herself from any court decisions about it -- meaning the Dems would lose a crucial vote on the Supreme Court when this case gets heard there.

These guys are not as dumb as they sometimes sound.

But wouldn't it be nice if we could simply have a serious and a lively national debate about the role of the federal government and then take a vote to decide that issue -- instead of all of this flailing about, screaming about silly trifles and meaningless trivia?

Ralph