Legal Commentary

Constitutionality of the ?Nebraska Compromise?

By David Kopel

The original ?Nebraska Compromise? (the Kansas-Nebraska Act) was an attempt to compromise a contentious national issue. At least arguably, the abortion spending restrictions in the Senate health care bill fits in this broad description, and like the KNA, the new abortion provision includes an element of state-based choice. However, another provision of the Senate bill is no compromise at all: the requirement that taxpayers in the other 49 states pay the full cost of the extra Medicaid spending that will be necessary in Nebraska because of the Senate bill. ?Cornhusker kickback? is the more accurate term for this provision.

Is the Cornhusker kickback constitutional? A recent blog post by University of Montana law professor (and Independence Institute Senior Fellow) Rob Natelson explains the issue for laymen: It?s not an Equal Protection violation, because Equal Protection does not protect states from discrimination. It is a gross violation of the ?(1) the General Welfare Clause (Article I, Section 8, Clause 1), designed to prevent taxation for regional or special interest expenditures and (2) the Necessary and Proper Clause (Article I, Section 8, Clause 18), whose ?proper? requirement probably was meant to assure that federal legislation met minimal fiduciary standards of fairness.? However, at Natelson notes, the Supreme Court has historically been timid about enforcing those provisions of the Constitution, and after 1937 gave up entirely.

But as I have argued elsewhere, the Constitution is more than merely what the Courts say it is. Even when Courts act as if a constitutional provision had never been written, the People can still act to protect constitutional provisions, through the political process, and through public debate. If the people do so in regards to the ?Cornhusker kickback,? they will be acting faithfully to the original meaning of the Constitution. For the original meaning, see: Natelson, Judicial Review of Special Interest Spending: The General Welfare Clause and the Fiduciary Law of the Founders, 11 Tex. Rev. L. & Pol. 239 (2007). See also Natelson, The Agency Law Origins of the Necessary and Proper Clause, 55 Case W. Res. L. Rev. 243 (2004); The General Welfare Clause and the Public Trust: An Essay in Original Understanding, 52 U. Kan. L. Rev. 1 (2003).

Full post as published by The Volokh Conspiracy on December 23, 2009 (boomark / email).