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Deals and the Constitution


A reader writes in with a further point on whether the Founders would've been appalled by the process that led to the health-care reform bill:

Don't forget the ultimate "Cornhusker kickback": Designating each black person as only 3/5's of a white person in order to seal the final agreement between the north and the south. Wonder if South Carolinian Lindsay Graham recalls that sleazy "backroom deal"?

And if you're looking for something a bit more recent, there's Social Security, which largely excluded African Americans by writing agricultural and domestic service workers out of the initial draft of the program. Appalling deals have long been part of the political process, and the fact of the matter is that the Nelson deal was a lot less appalling than most.

Photo credit: By Dayna Smith

By Ezra Klein  |  March 29, 2010; 1:00 PM ET
Categories:  Health Reform  
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Next: Access to medical care is not 'candy' or an 'indulgence'


Somehow, I don't think the Democrats are going to get a lot of mileage out of the slogan "Health care reform -- It's just as legitimate as slavery!"

Posted by: tomtildrum | March 29, 2010 1:18 PM | Report abuse

Where were all of the self-righteous people when medicare d passed the house after the vote was held open for over 3 hours, while Tom (The Hammer) Delay coerced and bribed reps to get the votes to pass? Crickets...

If we want to get rid of separate deals for states, all we need to do is get rid of the senate.

Posted by: srw3 | March 29, 2010 1:20 PM | Report abuse

A teachable moment...

Barbara Fields in Slavery, Race and Ideology in the United States of America:

"Probably a majority of American historians think of slavery in the
United States as primarily a system of race relations—as though the chief business of slavery were the production of white supremacy rather than the production of cotton, sugar, rice and tobacco. One
historian has gone so far as to call slavery ‘the ultimate segregator.’ He does not ask why Europeans seeking the ‘ultimate’ method of segregating
Africans would go to the trouble and expense of transporting them across the ocean for that purpose, when they could have achieved the same end so much more simply by leaving the Africans in Africa.

... The three-fifths clause distinguishes between free Persons—who might be of
European or African descent—and other Persons, a euphemism for slaves. ...
When well-meaning people affirm, for rhetorical effect, that the Constitution
declared Afro-Americans to be only three-fifths human, they commit an error for which American historians themselves must accept the blame.
Racial ideology supplied the means of explaining slavery to people whose terrain was a republic founded on radical doctrines of liberty and natural rights; and, more important, a republic in which those doctrines seemed to represent accurately the world in which all but a
minority lived. Only when the denial of liberty became an anomaly apparent even to the least observant and reflective members of Euro-American society did ideology systematically explain the anomaly.
But slavery got along for a hundred years after its establishment without race as its ideological rationale. The reason is simple. Race explained why some people could rightly be denied what others took
for granted: namely, liberty, supposedly a self-evident gift of nature’s God. But there was nothing to explain until most people could, in fact, take liberty for granted—as the indentured servants and disfranchised freedmen of colonial America could not. Nor was there anything calling for a radical explanation where everyone in society stood in a relation of inherited subordination to someone else: servant to master, serf to nobleman, vassal to overlord, overlord to king, king
to the King of Kings and Lord of Lords."

Posted by: Jstor | March 29, 2010 1:21 PM | Report abuse

Well if they would like to get rid of geographic representation and the senate, I would think thats a great idea.

Posted by: yoyoy | March 29, 2010 1:42 PM | Report abuse


Your article noted that "the process might have looked like the worst of Washington, but it was also pretty similar to the process that created Washington."

You meant it figuratively, but it could have also been taken literally. DC quite literally was created through this very sort of deal making. Hamilton was a strong proponent of the federal government assuming all of the debt for the states incurred during the Revolution. Madison and Jefferson were opposed (both Republicans), but they agreed to the assumption of debt in exchange for locating the US capital in Washington DC (they wanted DC because it was closer to the South than Philadelphia or New York which were being considered as the permanent capital).

In a very real sense, DC would not exist in nearly the same form as it is in today but for deal making.

Deal making isn't inherently bad. To the contrary, it is perhaps a necessary component of the legislative process. It becomes bad when it is done in the dark and legislators are bargainging for some personal benefit (corruption), but that isn't what happened with Nelson, and it isn't what happened in relocating the capital to DC either.

Posted by: thefourthbranchcom | March 29, 2010 1:49 PM | Report abuse

tomtildrum above writes "Somehow, I don't think the Democrats are going to get a lot of mileage out of the slogan 'Health care reform -- It's just as legitimate as slavery!'"

Wouldn't it be ironic if the Obama Administration attorneys used an old slave tax (migration of people tax) case to justify the Constitutionality of the health care fines? There are cases which seem applicable... but I agree that claiming health care taxes to be as legitimate as slave taxes isn't an overly positive message.

Posted by: rmgregory | March 29, 2010 1:53 PM | Report abuse

Speaking of deals about DC itself, I was just reading in an old book how hard New Jersey pushed to have the federal capital on the Delaware River (near Trenton.) Needless to say the South was opposed.

Posted by: Hopeful9 | March 29, 2010 2:02 PM | Report abuse

@thefourthbranch: "Madison and Jefferson were opposed (both Republicans)"

Madison and Jefferson were Democratic Republicans, the progenitors of today's Democratic party. Not to nit-pick, but the modern day Republicans sprung up in the time of Lincoln, and probably represent the last case of a 3rd party becoming a dominant force in politics (in the sense that they could win majorities in congress and the Whitehouse).

And always keep in mind what the 3/5ths deal was about . . . southerners wanted to count slaves as full people in the census, in regard to the apportioning of representation, so that they would get more representatives in congress (even though the slave population could not vote, had no rights, and would, in fact, be represented against). Slavery arguably would have ended sooner and spread less, had the south gotten only 2/5th or 1/5ths "representation" for slaves.

It was a stepping stone on the road to ending slavery, despite seeming to value slaves as less than free men. Not a means to endorse or perpetuate it.

Posted by: Kevin_Willis | March 29, 2010 2:42 PM | Report abuse

The deals on slavery aren't even comparable with all of the alleged deals during healthcare negotiations. Something I wish you and other journalists covering healthcare would emphasize is that the Nelson deal, by making the Federal gov't responsible for all new Nesbraskans enrolling in Medicaid, would have insulated the poor from barbaric cuts to Medicaid due to state budget crises. It's what's happening in Arizona. The deal should have been made universal to all states, not stripped out. Of course, I support simply ending Medicaid and integrating it into a more comprehensive system within a national exchange, but that's not going to happen immediately.

Posted by: farside | March 29, 2010 2:59 PM | Report abuse

@Kevin Willis:


I am not sure why you responded to me on the 3/5 issue. I am aware of how the 3/5 compromise functioned and don't disagree at all with what you said (nor did I address it in my post). I also did not mean to imply that Madison and Jefferson were Republicans in the same sense that modern Republicans are Republicans. Obviously, parties had different ideological underpinnings in the 1790s even if the names were the same.

Posted by: thefourthbranchcom | March 29, 2010 4:08 PM | Report abuse

To some degree, I think the conservative Democrats in the Senate are getting a bum rap.

Landrieu and Nelson negotiated in good faith, and got bigger amounts of aid for their states. They didn't get a special deal for a project to go to their state and a favorit contractor. They didn't get a deal for a campaign contributor. They got money for Medicaid for their state.

Was it unfair to the rest of the states? Sure, but they don't represent them all. The rest of the Senators should have pushed for the same deal.

In the end, the main 4 conservative Democrats/Independent (Lincoln, Lieberman, Nelson, and Landrieu) all decided they couldn't accept the public option. I think they are wrong, but in the end, they still negotiated in good faith. They said it was a good bill without the public option, and they knew there were a few more Democrats beyond them who were not in favor of it. But after they won, they voted for the bill.

We wouldn't have gotten here without them.

Now, I don't understand why they didn't vote for reconciliation, especially when it was just mainly tweaking the financing. But the Democrats should have let these guys off the hook. They should have shoved it all through reconciliation, and then let 6-7 conservative Democrats vote against it, and win 53-47.

Posted by: CJBear71 | March 29, 2010 4:18 PM | Report abuse

Who cares what the Founders would have thought!

That is the only appropriate response to every asinine invocation of the long dead founding fathers.

They were not infallible, and in any case lived in a completely different nation and time.

Posted by: Modicum | March 29, 2010 6:05 PM | Report abuse

The compromise over slavery was NOT the ideal solution but it was the only way to resolve a big issue at the founding of our country. Unfortunately, it took a war to figure that out.

Once again, you as a liberal, use the race card to promote your point of view. Was maintaining slavery bad...Yes! But one has to understand history at time. But what does that have to do with legislation today?

To answer your question: would the Founders be appalled by the use of reconciliation to pass a large social/financial bill? Hell yes!! Why do you think the House, the Senate, the Executive Branch, and the Judical Branch were set up the way they were? Reconciliation is just a rule set up in our generation.

Posted by: debmat511 | March 29, 2010 7:45 PM | Report abuse

--"Appalling deals have long been part of the political process"--

Klein ethics in action! "We're just as immoral as those other guys!" "Fourteen wrongs make a right!"

Posted by: msoja | March 29, 2010 8:56 PM | Report abuse

Echoing @msoja - Ezra, this is terrible logic, and it reeks of: "it's ok because they vote the way I want."

Be honest with yourself, and with us. You only care about ethics in-so-much as they assit your political goals. That is to say - for you, unethical behavior by Republicans is a horrible, terrible sin, revealing evidence of low character, poor judgement,and implicates the entire GOP infrastructure as a bunch of evil-doers intent on enslaving us all within their corporate-controlled state.

Unethical behavior in Democrats is a non-issue - minor compared to the transgressions of the past, and therefore, not something to be concerned about.

If, through some bizarre process, Republicans started voting the way you wanted, and Democrats started voting in opposition, i expect your ethical compass would shift accordingly, so that you would always be blissfully content with the relatively high ethical standards of your guys, and the relatively low ethical standards of "the other".

Every last member of congress is a greedy, ethically challenged power-mad narcissist. All of them. Just because they vote the way you want doesn't make them any less dangerous.

Posted by: johndbro | March 30, 2010 8:17 AM | Report abuse

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