Rights, guns and health care...

One variation on a theme, spotted ricocheting around various social media outlets:

There is something wrong with a constitution that guarantees your right to a gun, but not your right to health care.

That depends entirely upon what one believes the purpose of a constitution to be.

The first problem with that statement is one of definition. The people issuing this lament are taking advantage of a conflation of terms, using the word "right" in two different ways. The "right to a gun" that the Constitution guarantees, and which they do not support, is a restriction on Government action, a "negative" right. The "right to health care" that they wish the Constitution did support, is a call for Government action, the institution of an affirmative or positive right. If the Constitution said the same thing about health care that it says about guns, that would not be good enough. A health care amendment that paralleled the 2nd amendment would read something like this

A healthy populace being necessary to the security of a free state, the right of the people to seek and obtain health care services shall not be infringed.

Which brings us to the second problem with that lament.  There's a reason that the Constitution does not forbid the Government from infringing on the right to seek and obtain health care, and that's because there was no need for it to do so. The framers of the Constitution had no concern that the government would infringe on liberty, and move towards despotism, by taking away people's doctor visits and hospitals. They had good reason to be concerned that a government would infringe on liberty, and descend towards despotism, by taking away people's guns, or taking away the right to freely assemble and criticize the government, or taking away the right to trial by jury, or by instituting excessive bails, or by performing unreasonable searches and seizures. All of those things are explicitly called out as limitations on the power of the Government. None of those are "affirmative" rights, requiring the Government to act - they are all "natural" or "negative" rights, defining the relationship of the Government and the Governed, and enumerating rights which the Governed are presumed to hold naturally, and which the Government must not violate.

If that "health care amendment" I included above were all that the supporters of a "right to health care" meant, then I would agree with their position, because it's self-evidently a legitimate negative right. But that's not what they mean, that's not what they want, and so I do not agree with them. They do not want a "negative" right to health care, in which the Government is enjoined from infringing on that right. They want a social contract that includes an affirmative right to health care, that the Government is required to provide.  That is to say, they wish to assert an obligation on the part of their fellow citizens to provide health care for them.  More than that, many of them believe that such a right is self-evidently an unadulterated good, so much so that those of us who think that such a "right" would lead to worsening the human condition rather than improving it, must be "greedy" and bad people.

And so, as with so many issues, it is almost impossible to have a discussion on the issue.  Those on the left have already made up their minds that the people opposing them are bad, so what they've got to say is irrelevant.  After all, who cares what bad people have to say?  It's the same thing that happens with abortion, and affirmative action, and gay marriage.  Once you've decided that your opponents are misogynists or racists or homophobes, well, obviously it doesn't matter what their arguments are...

Decision Day

Sometime shortly after 10:00 this morning, the Supreme Court will announce its decision on the constitutionality of ObamaCare. Here's Amy Howe's preview at the SCOTUSblog. Lyle Denniston has a reader's guide. And they will be live-streaming commentary as the time approaches. Obviously, I've already made my decision, long ago. I'm cautiously optimistic that the mandate goes out, at least, but since I so profoundly desire that, I can't be sure whether or not that optimism is based on wishful thinking. But by 11:00 this morning, we will either still live a nation of limited and enumerated powers, or we'll live in a country in which there are no practical limits to Congress' authority.

Slippery-Slope Logic vs. Health Care Law

While I'm on the subject of the Times, there was a very silly Op-Ed piece on Sunday, and it's illustrative of one of the key problems in the current American body politic.

Slippery-Slope Logic vs. Health Care Law - Economic View - NYTimes.com

The Times gave its real estate to Richard Thaler, "a professor of economics and behavioral science at the Booth School of Business at the University of Chicago," and he used it to debunk an argument that no one on the right is making.

Thaler starts off by talking about slippery-slope arguments in general, and correctly notes that it can be a form of logical fallacy.

There is a DirecTV ad that humorously illustrates the basic form of the slippery-slope argument. A foreboding announcer intones a list of syllogisms that are enacted on screen: “When your cable company puts you on hold, you get angry. When you get angry, you go blow off steam. When you go blow off steam, accidents happen.” Later, we reach the finale: “You wake up in a roadside ditch. Don’t wake up in a roadside ditch.” Although this ad is intended to be funny, arguments that make no more sense can and do affect public policy. The idea is that while Policy X may be acceptable, it will inevitably lead to the terrible Outcome Y, so it is vital that we prevent Policy X from ever being enacted. The problem is that such arguments are often made without any evidence that doing X makes Y more likely, much less inevitable. What percentage of people who are left on hold on the telephone end up in a roadside ditch?

And that's fine, as far as it goes. He's right - it's very easy to put together a slippery-slope argument that makes assumptions about the likelihood of future possibilities and ends up somewhere very scary, or seductive, or exciting, and has no logical validity. But then he goes ahead and applies the idea to the debate over Obamacare that was recently held at the Supreme Court, accusing those who are opposed to the idea of the individual mandate of using slippery slope arguments that end with Congressional broccoli mandates.

It's true, of course, that many people have argued, or, more accurately, asked, "if Congress can mandate the purchase of health insurance, could they mandate the purchase of broccoli?" But that is not, as he as characterized it, a slippery-slope argument against the mandate. Rather, it was an inquiry into the fundamental constitutional limits of Congressional power.

Consider these now-famous comments about broccoli from Justice Antonin G. Scalia during the oral arguments. “Everybody has to buy food sooner or later, so you define the market as food,” he said. “Therefore, everybody is in the market. Therefore, you can make people buy broccoli.” Showing remarkable restraint, he did not mention anything about ending up in a roadside ditch.

Justice Scalia is arguing that if the court lets Congress create a mandate to buy health insurance, nothing could stop Congress from passing laws requiring everyone to buy broccoli and to join a gym. He and Chief Justice John G. Roberts Jr. were asking the solicitor general to explain what the principle would be to stop the government from going so far. If the law stands, Justice Roberts suggested, “it seems to me that we can’t say there are limitations on what Congress can do under its commerce power.” He added, “Given the significant deference we accord to Congress in this area, all bets are off, and you could regulate that market in any rational way.”

Please stop! The very fact that a slippery slope is being cited as grounds for declaring the law unconstitutional — despite that “significant deference” usually given to laws passed by Congress — tells you all that you need to know about the argument’s validity. Can anyone imagine Congress passing a broccoli mandate law, much less the court allowing it to take effect?

It's difficult to tell whether Thaler does not understand the discussion or is intentionally misrepresenting it, but he is fundamentally mis-characterizing the argument. No one is making a "slippery slope" argument in this case. The slippery-slope argument is of the form "if A happens then B is much more likely to happen, and will almost inevitably lead to C." No one has ever suggested that the individual mandate will make mandatory broccoli purchases likely, so it is not a slippery slope argument. What it is, rather, is an inquiry into the inherent limits of Congressional power, and people suggest a broccoli-mandate not as a likely consequence but as an obviously ludicrous example of something that would not happen but is just as constitutional under the logic of the case being made for the individual mandate. In other words, what we could term the "broccoli argument" is not a slippery slope argument - it's a reductio ad absurdum.

He says that "Justice Scalia is arguing that if the court lets Congress create a mandate to buy health insurance, nothing could stop Congress from passing laws requiring everyone to buy broccoli and to join a gym." On its face, that's a slippery slope argument. But that's not the argument being made. By using the term "nothing" in that statement, he's demonstrating either a lack of understanding or a lack of honesty. There are many things that might stop Congress from passing laws, first among those being the will of the voters that sent them to Washington and will, in the hopes of the members of Congress, keep them there. No one is arguing that "nothing could stop Congress" if the individual mandate is deemed constitutional. What people are arguing is that if the Constitution cannot stop Congress from mandating health insurance coverage, then the Constitution cannot stop Congress from mandating broccoli. That's a far cry from the argument that Thaler has portrayed. In his mockery of the slippery slope argument that no one is making, he's confirming the power and logic of the reduction ad absurdum argument that's actually being made.

So when he plaintively asks, "Can anyone imagine Congress passing a broccoli mandate law," the answer is obviously, "no." So far, so good. Everyone is in agreement. But then he actually touches, and ignores, the relevant question in that same sentence, when he asks, "much less the court allowing it to take effect?" Well, if the court is going to exercise that "significant deference to Congress" that we've spoken of, on what grounds could a court not allow it to take effect if Congress enacted it? And how would those grounds differ from the grounds for not allowing the individual mandate to take effect? The court is supposed to rule on the Constitutional permissibility of the law in question. If you cannot articulate a theory of law in which the law being examined differs in a relevant way from an obviously unconstitutional theoretical law, and no one on the pro-mandate side has successfully done so, then you're conceding that the law being examined is not constitutional.

Is Partisanship Responsible for the Success of Constitutional Challenges to ObamaCare?

Is Partisanship Responsible for the Success of Constitutional Challenges to ObamaCare?

Does it really require rank partisanship to be skeptical about the merits of a never-been-tried legal requirement that regulates doing nothing based on the argument that doing nothing is in fact a form of activity?

I think not...

The Case Against President Obama's Health Care Reform: A Primer for Nonlawyers

From the Cato Institute comes The Case Against President Obama's Health Care Reform: A Primer for Nonlawyers

An essential aspect of liberty is the freedom not to participate. PPACA’s directive that Americans buy an unwanted product from a private company debases individual liberty. And it’s unconstitutional.

Questions about what's at issue? Click the link...

Court sets 5 1/2-hour hearing on health care

When the Obamacare monstrosity Patient Protection and Affordable Care Act was signed into law, there was incredulity on the part of some supporters that anyone might think it could possibly be unconstitutional. There was some mockery of those of us who thought it might not pass muster.

Yeah, well, it may or may not be tossed out, but obviously the constitutionality is not a foregone conclusion. SCOTUSblog:

Setting the stage for a historic constitutional confrontation over federal power, the Supreme Court on Monday granted three separate cases on the constitutionality of the new federal health care law, and set aside 5 1/2 hours for oral argument, to be held in March...The Court will hold two hours of argument on the constitutionality of the requirement that virtually every American obtain health insurance by 2014, 90 minutes on whether some or all of the overall law must fail if the mandate is struck down, one hour on whether the Anti-Injunction Act bars some or all of the challenges to the insurance mandate, and one hour on the constitutionality of the expansion of the Medicaid program for the poor and disabled.

I've already made up my mind, of course. I find no valid reading of the Constitution that allows the Federal Government to impose the kind of program that this law imposes. The Supreme Court may agree with me, it may disagree, but it won't change my opinion on that. There are too many decisions which have already expanded the Commerce Clause jurisprudence far beyond anything I believe the founders would have sanctioned for me to have confidence in the outcome.

I am curious to see what Scalia and Thomas, at least, have to say about it. One way or the other, we'll know the outcome when we head to the polls next November...

You can't make this stuff up...

I had started to make some comments about the intellectual capability of an Illinois congressman, but have decided that his comments really speak for themselves...

Jesse Jackson Jr. - Congress in Rebellion

Illinois Democratic Rep. Jesse Jackson, Jr. told The Daily Caller on Wednesday that congressional opposition to the American Jobs Act is akin to the Confederate “states in rebellion.”

Jackson called for full government employment of the 15 million unemployed and said that Obama should “declare a national emergency” and take “extra-constitutional” action “administratively” — without the approval of Congress — to tackle unemployment.

“I hope the president continues to exercise extraordinary constitutional means, based on the history of Congresses that have been in rebellion in the past,” Jackson said.

Clearly, he took his congressional oath of office, to protect and uphold the Constitution, seriously...

Thomas Sowell on the constitution and progressives

Brilliant.

More than a hundred years ago, so-called "Progressives" began a campaign to undermine the Constitution's strict limitations on government, which stood in the way of self-anointed political crusaders imposing their grand schemes on all the rest of us. [LB: Unfortunately, they've been very successful on both fronts...] That effort to discredit the Constitution continues to this day, and the arguments haven't really changed much in a hundred years.

The cover story in the July 4th issue of Time magazine is a classic example of this arrogance. It asks of the Constitution: "Does it still matter?"

A long and rambling essay by Time magazine's managing editor, Richard Stengel, manages to create a toxic blend of the irrelevant and the erroneous.[LB: In other words, pretty standard Time magazine fare...]

The irrelevant comes first, pointing out in big letters that those who wrote the Constitution "did not know about" all sorts of things in the world today, including airplanes, television, computers and DNA.

This may seem like a clever new gambit but, like many clever new gambits, it is a rehash of arguments made long ago. Back in 1908, Woodrow Wilson said, "When the Constitution was framed there were no railways, there was no telegraph, there was no telephone..."

Read it all...

More Obamacare - Prof. Randy Barnett testimony

Georgetown Law Professor Randy Barnett has been, from the beginning, one of the most eloquent critics of Obamacare, and one of the first and most consistent holders of the position that the individual mandate is clearly unconstitutional. Today (or maybe yesterday) he posted his responses to some questions asked by Senators Durbin and Sessions. It's an interesting read.

Answers to Questions Posed by Senators Durbin and Sessions

c. In your testimony, you alluded to jury duty, selective service registration and several other actions the federal government requires of each individual citizen. You described these as traditionally-recognized requirements that were necessary for the continued function of the government itself. In 1792, the United States did not have a permanent standing army. Do you think service in the militia was among those traditionally-recognized requirements necessary for the continued function of government?

Without question, it was considered a fundamental duty of citizenship. Congress is now seeking to add an new and unprecedented duty of citizenship to those which have traditionally been recognized: the duty to engage in economic activity when Congress deems it convenient to its regulation of interstate commerce. And the rationales offered to date for such a duty would extend as well to the performance of any action, whether economic or not, when Congress deems it convenient to the exercise of its power over interstate commerce. The recognition of so sweeping a duty would fundamentally alter the relationship of American citizens to the government of the United States.

Read it all...

Judge Roger Vinson understands more than all of the Democrats put together...

A wonderful (and obviously, almost trivially, true) passage from Judge Vinson's decision declaring Obamacare unconstitutional:

It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. If it has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting --- as was done in the Act --- that compelling the actual transaction is itself “commercial and economic in nature, and substantially affects interstate commerce,” it is not hyperbolizing to suggest that Congress could do almost anything it wanted. It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place. If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be “difficult to perceive any limitation on federal power,” and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended.

Yup. Well put, Judge Vinson.

Another judge rules Obamacare unconstitutional

I said last July, that "for many of us, [Obamacare] will feed our desires to say "I told you so" for the rest of our lives..."

Well, I told you so...

Justice Roger Vinson of the U.S. District Court in Pensacola ruled today that the primary mechanism used by the health reform legislation to achieve universal insurance coverage–the individual mandate–is illegal. If his ruling stands it would void the 2,700 page health reform bill passed last year.

“Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void. This has been a difficult decision to reach, and I am aware that it will have indeterminable implications,” Vinson writes.

Now, we don't know what Justice Kennedy will have for breakfast when the case is heard the Supreme Court will eventually decide, but I think it's pretty clear, at this point, that the contention that many of us made that this piece of legislation was not constitutional was not frivolous.

Short, sweet, to the point...

There's been a lot of mockery on the left about the Republicans insistence on using the Constitution to justify legislation, and the political "stunt" of actually (gasp!) reading the Constitution on the floor of the house.

Don Surber explains why:

Here is what is going on: For years liberals have used the courts to dodge the legislative process because liberals are outnumbered. Only one-fifth of the population agrees with the liberal madness that holds that America is evil and must be Europeanized.

Now ordinary citizens are turning to the Constitution and this has liberals squawking. In their minds the Constitution belongs to them and not we the people.

Yup.

Obamacare unconstitutional

A Federal Judge has ruled that the Obamacare individual mandate is unconstitutional. This is not done yet, because it's clearly going to go to the Supreme Court.

But many of us made this argument before they passed it, before he signed it, and were mocked for making it. It doesn't look like quite as outlandish a contention today, does it?

Two points:

• The bill, as passed, did NOT include a non-severability clause. Which means that, if one part goes out, the whole of it goes out.
• Regardless of the presence or absence of a severability clause, none of the bill works, even in the "the world will behave the way we decree it will" mindset of the leftists, without an individual mandate.

Where do we go from here? To the next court, obviously. But this is a good thing, and a judge has made a correct decision.

Update:

Let’s remember that these mandates are the central tenets of Obamacare. Gut them and the law falls apart.

- Sen. Orrin Hatch

Exactly right.

GOP 'Pledge to America' Looks Unlikely to Inspire - Newsweek

Newsweek (no surprise there) offers possibly the dumbest piece of political commentary ever committed to paper (or pixel).

Not so harmless, however, is the promise to require every bill to be certified as constitutional before it is voted on. We have a mechanism for assessing the constitutionality of legislation, which is the independent judiciary. An extraconstitutional attempt to limit the powers of Congress is dangerous even as a mere suggestion, and it constitutes an encroachment on the judiciary.

Simply mind-boggling. One would think that it would be at least benign, if not actually beneficial, to have Congress think about the constitutionality of legislation before passing it, rather than doing whatever the hell they feel like doing and passing the buck to the courts to protect the constitution, a task at which they've notably failed on many occasions. And it's difficult to see how a pledge by a group of Congresspeople to refrain from passing unconstitutional legislation is somehow "dangerous as a mere suggestion." Indeed, the idea that Congress would not assess the constitutionality of legislation before passing it is a far more dangerous suggestion, as that institution has demonstrated. Repeatedly. And the idea that there's any conceivable way to read this as a "encroachment on the judiciary" is just silly. One might as easily say that a bank robber's decision to retire from a life of crime somehow constitutes "an encroachment" on the police or an obese person's diet is "an encroachment" on McDonald's.

As to the idea that the "mechanism for assessing the constitutionality of legislation...is the independent judiciary," one wonders whether the author is aware of the oath of office that each member of Congress takes:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.

As I say, the column was exactly what you'd expect from Newsweek. I included the link, but I'd have to advise you not to click and follow it. I read it so you don't have to...

Lawsuit up to 18 states

Can anyone remember the last time that eighteen states joined together to sue the federal government over the constitutionality of newly-enacted law?

The joint lawsuit led by Florida and now grouping 18 states was filed on March 23. It claims the sweeping reform of the $2.5 trillion healthcare system violates state-government rights in the U.S. Constitution and will force massive new spending on hard-pressed state governments.

South Carolina, Nebraska, Texas, Utah, Louisiana, Alabama, Colorado, Michigan, Pennsylvania, Washington, Idaho, and South Dakota had previously joined Florida's lawsuit.

"We welcome the partnership of Indiana, North Dakota, Mississippi, Nevada and Arizona as we continue fighting to protect the constitutional rights of American citizens and the sovereignty of our states," Bill McCollum said.

Anyone? Anyone?

Me neither.

But, hey, I've been assured by all of my facebook friends that ObamaCare can't possibly be considered unconstitutional. These states must all be run by, and filled with, wingnuts...

"Anyone, any time, anywhere..."

Ilya Shapiro, of the Cato Institute:



Words have meanings. The writers of the Constitution had an understanding about what it meant, and while there are aspects about it which are not intuitively obvious to us now, this much is clear - there is no way that they intended the Federal Government to have the power which it claims for itself with the passage of the Health Care Reform bill law. Just no way. And there are any number of constitutional scholars willing to stand up and say so.

"I don't worry about the Constitution on this..."

Meet United States Representative Phil Hare(D-IL).



This is a United States Congressman, a man who took an oath to "support and defend the Constitution of the United States against all enemies, foreign and domestic." But he doesn't know where the Constitution authorizes the bill that he voted for last week, doesn't know the difference between the Constitution and the Declaration of Independence, and doesn't worry about what the Constitution says. DrewM, over at Ace of Spades says, rightly, that "very rarely has so much stupid been packed into just a little more than 3 minutes."

"I believe that is says we have the right to life, liberty and the pursuit of happiness."
"That's the Declaration of Independence."
"It doesn't matter to me. Either one."

...

"Where in the Constitution does it give you the authority to..."
"I don't know. I don't know."

Is the Obamacare bill even constitutional?

One of the things that is scary about the health care debate is that, while we discuss it from utilitarian (bad) and philosophical (worse) points of view, there's no discussion amongst our representatives whatsoever about whether their proposals are constitutional. Which they are almost certainly not.

Many commentators, for example, doubt the constitutionality of the plan’s “individual mandate,” which would require individuals to purchase health insurance if they do not have it. Such an unprecedented requirement likely exceeds the limited and enumerated powers delegated to Congress under the Constitution. Congress can exercise only those powers that the Constitution expressly delegates to it, and it doubtful that Congress has the authority to require individuals to purchase goods or services. While proponents of the legislation point to the congressional power to regulate interstate commerce, it is difficult to see how requiring individuals to purchase health insurance when they are currently not doing so constitutes regulation of interstate commerce.

...


If individuals have a constitutional right to reject treatment, surely they have the right to reject paying significant sums for insurance. The government could not, for example, force citizens to subscribe to National Review or The Nation. Such a law would plainly violate the right to free speech under the First Amendment. Just as individuals have a right to speak freely themselves and to choose the newspapers or magazines they read, so too they have a right to be free from laws that would require them to purchase materials with which they disagree.

Of course, there's a lot of legislation passed in Washington which wouldn't pass if our elected representatives actuall followed the Constitution. This is just one more piece...

Reid bill constitutional? Not likely...

Richard A. Epstein examines the constitutionality of the Reid bill:

This ill-conceived legislation has many provisions that regulate different aspects of private health-insurance companies. Taken together, the combined force of these provisions raises serious constitutional questions. I think that these provisions are so intertwined with the rest of the legislation that it is difficult to see how the entire statute could survive if one of its components is defective to its core. How courts will deal with these difficult issues is of course not known, but rate-regulation cases normally attract a higher level of scrutiny than, say, land-use decisions.

There is, moreover, no quick fix that will eliminate the Reid Bill's major constitutional defects. It would, of course, be a catastrophe if the Congress sought to put this program into place before its constitutionality were tested. Most ratemaking challenges are done on the strength of the record, and I see no reason why a court would let a health-insurance company be driven into bankruptcy before it could present its case that the mixture of regulations and subsidies makes it impossible to earn a reasonable return on its capital. At the very least, therefore, there are massive problems of delayed implementation that will plague any health-care legislation from the date of its passage. I should add that the many broad delegations to key administrative officials will themselves give rise to major delays and additional challenges on statutory or constitutional grounds.

The health of the American people should not be held hostage to such unwise legislation. The Senate should reject the Reid Bill because of the unsustainability of the statutory scheme regulating health-insurance markets. But there is also little doubt that its central arrangements are unconstitutional, and will face serious legal challenge for years to come. Rather than embarking on a fundamentally flawed course of action, sure to spark litigation, the Senate should start over with other reforms that go in the opposite direction: simplify the system so that market forces can increase both quality and access in ways that no system of government mandates can hope to do. Deregulation is a word that has been forgotten in the current debate. It should be returned to center stage.[4]

Of course, if this were a time at which the Congress or administration were to bow to the constitutional limits imposed upon them, it would be the first...

"...no warrant for such an appropriation in the Constitution..."

I wrote a couple of years ago about how Grover Cleveland had become my new favorite President. My affection of him has increased greatly with this post from Floyd at threedonia:

I can find no warrant for such an appropriation in the Constitution and I do not believe that the power and duty of the general government ought to be extended to the relief of individual suffering which is in no manner properly related to the public service or benefit. A prevalent tendency to disregard the limited mission of this power and duty should I think be steadfastly resisted to the end that the lesson should be constantly enforced that though the people support the government the government should not support the people.

We could use a man like Grover Cleveland again...