This week, the United States Supreme Court will hear six hours of oral arguments on the constitutionality of Obamacare.  Oral arguments are usually limited to one hour, which suggests something about the gravity of this case.

From an originalist perspective, there is little doubt that Congress’s requiring individuals to purchase health insurance is unconstitutional.  Yet such a requirement is necessary if we are to have affordable, universal health care.

The solution to this dilemma is to abandon a national approach to health care and return the matter to the states. Federalism was one of the founders’ greatest innovations.  It has helped prevent tyranny, and it has allowed the states to function as “laboratories of democracy.”

It is true that since the 1930s Congress has been able to pass laws without seriously considering whether it has the constitutional authority to do so.  Some of these laws, such as the Civil Rights Act of 1964, have had wonderful outcomes.  But a long history of neglecting the Constitution does not make it right.

Governing is messy business, and different constitutional arrangement will have strengths and weaknesses.  However, Americans who believe with Lord Acton that “power tends to corrupt, and absolute power corrupts absolutely,” and those who value the rule of law, should hope that the Court declares Obamacare to be unconstitutional.

Such an outcome does not mean we will not have universal health care, it will simply require states to step up to the plate to find innovative and creative ways to bring about this outcome.  Those who believe states are incapable or unable to do this should read the Massachusetts Health Care Insurance Reform Law of 2006.