Posts Tagged ‘US Constitution’

The Individual Mandate: Unconstitutional in 1781

March 27, 2012 Leave a comment

What is so extreme about the individual mandate? Somehow huge mandatory government interventions like medicare and social security survive most conservatives’ “literal” reading of the constitution, but an unenforceable fine for not buying health insurance establishes an unfathomable expansion of government authority. It’s clear that this seasonal crop of literalists are just constitutionalists of convenience – they don’t like Obamacare ipso facto it’s unconstitutional.

Who knows, I’m not a lawyer either so I’m probably practicing a little motivated reasoning myself. But the case for constitutionality seems so simple to me that unless your committed to an absurdly strict reading, you should accept that Obamacare should stand.

Where in the Constitution…?

Anyone asking a version of the above question and looking for precise written permission for a Congressional power is arguing about the wrong document. The Articles of Confederation limited Congress to the powers it “expressly delegated,” but when the Founders drafted the new Constitution the Anti-Federalists lost. The new document dropped the rigid wording and allowed Congress to pass laws that flow reasonably from the listed powers. More exactly, Congress may enact regulations that are “necessary and proper” to execute the Constitutional powers such as regulating commerce.

Is the healthcare market commerce?

To ask the question is to answer it. The healthcare market for insurance is obviously commerce. I’m not sure how that is even in dispute. Congress recognized that many citizens who want to buy insurance can’t, so made a regulation that forces insurance providers to cover people with pre-existing conditions. Most of the opponents of the individual mandate accept the premise that Congress can and should pass a regulation that prohibits pre-existing condition exclusions in insurance plans.

Is the individual mandate “necessary and proper?”

If you accept that Congress can regulate the insurance and can make it illegal for healthcare companies to deny coverage to those with pre-existing conditions, than mandating that people should buy health insurance or pay a penalty is a “necessary and proper” regulation to execute the goal of coverage. Without the mandate, insurance companies could not reasonably cover enrollees with pre-existing conditions because of adverse selection and free-riders who would just jump into insurance once they got sick. Without the healthier people in the risk pool, insurance doesn’t work. Imagine if you could buy car insurance after you got in an accident.

In Massachusetts, only once Mitt Romney’s individual mandate went into effect did the healthier citizens broaden the risk pool.

As you can see, when the mandate became “fully operational” [the 2nd dotted line] the “not chronically ill” enrollees (i.e. healthier people) joined the ranks of the insured en mass.

The individual mandate is necessary and proper to address the market failure inherent in the insurance market for healthcare.

Technicalities shouldn’t matter

As I stated earlier, I’m not a constitutional lawyer so it’s possible that the individual mandate will be struck down because of some legal technicality of, say, Congress not designing the mandate as an explicit tax, which has the exact same consequences economically. Maybe a majority of justices will find some quasi-theological distinction between activity and inactivity, but the Roman Fabius and the Taoist Laozi both teach us that non-doing is a form of doing.

Opponents might not think that the policy tool is perfect, but Congress has the Constitutional power to address a market failure. The Supreme Court should uphold the mandate and give Congress reasonable scope to regulate commerce. If Obamacare is bad policy, elections can be the remedy.

Sacrosanctum Concilium

October 21, 2010 2 comments

As discussed before, many people treat the Constitution as a sacred text. Yet, it appears too many of those don’t even understand what they’re worshiping.

There are no Latin translation issues, so what’s the problem? Maybe this is another instance of faith being a poor substitute for learning and knowledge. Remember that atheists knew more about religious doctrine than many of the faithful. So when people who fancy themselves “constitutional conservatives” like Christine O’Donnell don’t know that the First Amendment states, “Congress shall make no law respecting an establishment of religion,” and ask “You’re telling me that’s in the First Amendment?,” what’s going on?

We’re seeing an example of what happens when people worship ideas and are dogmatically bonded to an ideology. O’Donnell isn’t the first person to ask, “Where in the Constitution is the separation of church and state?” Don’t mistake it for actual curiosity; the religious right has a long campaign of challenging the secular nature of our constitution, and that question is a prime indication that O’Donnell has spent more time reading Christian revisionist historians like David Barton than reading mainstream Constitutional law or the Constitution itself. It’s the same phenomena we see with the anti-evolution crowd, who have spent countless hours studying ways to challenge the biology without bothering to learn what it is actually about. If someone says something like, “I haven’t seen a half-monkey, half-person yet,” we know they haven’t read any scientific books on evolution, but sure have gone to a creationist website.

So it shouldn’t be surprising that people like Ed Brayton of ScienceBlogs can dismantle the common arguments against the “separation of Church and State.”

Of course it’s true that the actual phrase “separation of church and state” is not in the constitution. But then neither are the phrases “separation of powers” or “checks and balances”, yet no one would argue that the concepts are not there, embodied in numerous specific provisions. Just as the founders used those phrases to describe the intent of the constitutional provisions for power to be divided between three branches of government, they also used the phrase “separation of church and state” to describe the intent of the religion clauses of the first amendment. When the courts go about applying constitutional law, one of the primary ways they do it is to look for the “legislative intent” – the purpose that those who wrote the law had in mind, the goal they wanted to accomplish. When the men who wrote it say in several places, as they did, that the goal of the religion clauses of the first amendment was to erect a wall of separation between church and state, that is about as authoritative as it gets when you’re trying to determine legislative intent.

I hope episodes like these make secular people everywhere realize that it’s not just the science of evolution that the faithful will undermine, but that faith can corrode all of science, all of law, all of history, and reason in general. I know that comes off as hyperbolic. I’m not claiming that all of reason or our secular nation is in immediate danger of collapsing under the pressure of faith but only that we must be vigilant and recognize that faith and reason are fundamentally incombatiable.

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Breaking Secular Idols

September 27, 2010 Leave a comment

The Economist has a very good piece on “The perils of constitution-worship”. It serves as a useful reminder to people like me who sometimes fall into that trap. In a college course I wrote a paper defending James Madison from all attacks – in retrospect I realize I can recognize his genius without making him infallible.

When history is turned into scripture and men into deities, truth is the victim. The framers were giants, visionaries and polymaths. But they were also aristocrats, creatures of their time fearful of what they considered the excessive democracy taking hold in the states in the 1780s. They did not believe that poor men, or any women, let alone slaves, should have the vote. Many of their decisions, such as giving every state two senators regardless of population, were the product not of Olympian sagacity but of grubby power-struggles and compromises—exactly the sort of backroom dealmaking, in fact, in which today’s Congress excels and which is now so much out of favour with the tea-partiers.

The Declaration of Independence and the Constitution still amaze me and deserve our respect. This isn’t an argument for casting them aside as of relics of dead white men. We must be on guard against calcifying unnecessary flaws into our political system. Ironically, the last thing the Founding Fathers would have wanted would be to have their words treated as sacred… not that what they wanted has to matter.

Bitter Cops

I had some amazing cocktails at my new friend Ran’s bar at the Sichuan Garden II in Woburn, MA. He’s superb mixologist; he treated a lady-friend and I to some classic drinks with some modern and personal twists. I really loved his maple old-fashioned. Little did I know that the lemon foam on top is potentially illegal in some parts of the US! Not to mention those bitters that spiced up a few other drinks I enjoyed…

In case you’ve been sitting in a dark room somewhere sucking down rum and Diet Cokes, America is in the midst of a cocktail renaissance. A cadre of elite mixologists (or bartenders, as Thrasher prefers to be called) in New York, Portland, San Francisco, D.C., and other creative-class cities is bringing back classics and offering new twists on retro techniques. Meanwhile, alarmed by all this creativity and innovation, retrograde health inspectors and bureaucrats are cracking down on innovation from coast to coast.

I’m a 1st Amendment absolutist – it allows me to vigorously defend the 21st!  

Cucumber Chill = Japanese Slipper muddled with lemon cucumbers and mint toped with shiraz and midori caviar
(photo via: Ran’s F.B. page)

Defining Words: Unabridged Version

March 12, 2010 Leave a comment

My hyper-partisan Republican uncle (who is conveniently reading the constitution more absolutely and limitedly now that a Democrat is in office) sent me this video of Judge Andrew Napolitano, who I generally like and usually find agreeable.  But I couldn’t help notice the word he chose to narrowly define while failing to acknowledge the more broad meaning of the other operative word in the “Commerce Clause.”

I looked up his Wall Street Journal piece on the Constitutionality of healthcare regulation, which he references, and his neglect goes further than in his speech.  He argues that during the time of the Framers, the commerce clause use for the word “regulate” meant to keep “regular.” 

James Madison, who argued that to regulate meant to keep regular, would have shuddered at such circular reasoning. Madison’s understanding was the commonly held one in 1789, since the principle reason for the Constitutional Convention was to establish a central government that would prevent ruinous state-imposed tariffs that favored in-state businesses. It would do so by assuring that commerce between the states was kept “regular.”

 He spends further time complaining that the Supreme Court has given Congress the ability to regulate noncommercial behavior such as our healthcare system, which he argues wasn’t ever intended.  But it is not always clear what is or isn’t commercial – and Napolitano does his readers a disservice by omitting the more expansive definition “commerce” used to carry in the Framers’ era.  

As Yale Law School Professor, Akhil Reed Amar, writes

But “commerce” also had in 1787, and retains even now, a broader meaning referring to all forms of intercourse in the affairs of life, whether or not narrowly economic or mediated by explicit markets.  


Without a broad reading of “Commerce” in this clause, it is not entirely clear whence the federal government would derive its needed power to deal with noneconomic international incidents – or for that matter to address the entire range of vexing nonmercantile interactions and altercations that might arise among states.

He goes on to point out that the first Congress regulated noneconomic interactions.

This doesn’t prove one way or the other whether the regulation of healthcare is constitutional or not (I’m certainly not going to pretend I know the answer) but Napolitano should provide readers with a fuller etymology of the relevant words – not just the ones beneficial to his case.  

Faith-Based History: "Wrapped in a Flag, Carrying a Cross"

February 16, 2010 Leave a comment

The New York Times magazine recently printed an article on the battle over history (and more general educational) standards in the Texas School System, which has huge influence over the national textbook market. Much of the situation is disturbing – fundamentalist Christians with no particular expertise are rewriting (or trying to) the academic subject standards. America’s religious history should not be whitewashed, but the obvious politicization of history by the Christianist school board members should appall any dispassionate historian or educator.

In the new guidelines, students taking classes in U.S. government are asked to identify traditions that informed America’s founding, “including Judeo-Christian (especially biblical law),” and to “identify the individuals whose principles of law and government institutions informed the American founding documents,” among whom they include Moses. The idea that the Bible and Mosaic law provided foundations for American law has taken root in Christian teaching about American history. So when Steven K. Green, director of the Center for Religion, Law and Democracy at Willamette University in Salem, Ore., testified at the board meeting last month in opposition to the board’s approach to bringing religion into history, warning that the Supreme Court has forbidden public schools from “seeking to impress upon students the importance of particular religious values through the curriculum,” and in the process said that the founders “did not draw on Mosaic law, as is mentioned in the standards,” several of the board members seemed dumbstruck. Don McLeroy insisted it was a legitimate claim, since the Enlightenment took place in Europe, in a Christian context. Green countered that the Enlightenment had in fact developed in opposition to reliance on biblical law and said he had done a lengthy study in search of American court cases that referenced Mosaic law. “The record is basically bereft,” he said. Nevertheless, biblical law and Moses remain in the TEKS.

The Founding Fathers and the Lack of Beeswax

February 3, 2010 2 comments

Andreas Kluth was kind enough to comment on my post on the parallels between democracy and religion; he linked to some of his writings on democracy to further enlighten our readers. I highly encourage everyone to visit his blog – I’ve found a number of his posts there and at The Economist absorbing. Particularly for the history lovers I know who read this blog, I recommend his post on Polybius where I learned (among much else) about the two Greeks who “gave us history.”

In many of the posts we find a more comprehensive view of what Kluth mentioned at the “failed state” debate.

Madison was undoubtably skeptical of democracy over republicanism, as Kluth points out. Accordingly, many of the lessons and warnings about democracy Madison and other founders remind us of should be remembered. Yet, those who would find refuge in our Constitution to temper any overly democratic zealotry should be careful. A pitfall (also a strength in many cases) of democracy even trapped the Founders. However much any Founder distrusted democracy, the fact that they had to ratify the document ensured that it would lean toward more democracy rather than less. In his essential history, America’s Constitution: A Biography, Akhil Reed Amar reminds us of the republic/democracy dynamic.

First Amar informs us that Madison’s use of “republic” was “swimming against the tide of standard eighteenth-century usage. Thus in [Federalist] No. 10 he stipulated his own definition: ‘A republic, by which I mean…’ (as opposed to ‘a republic, by which is generally meant…’). Amar goes on to highlight that “at the same time that Madison was drawing his fine linguistic distinction, other leading Federalists were obliterating it, proclaiming that a “republican” government could be either directly or indirectly democratic.” Most users saw ‘republican’ and ‘democratic’ as distinct not from each other but from ‘monarchy’ and ‘aristocracy’. (p. 276-77)

In an awfully substantial footnote, Amar wades into the debate between scholars on how democratic the constitution is. He sifts out that the relevant question is not “whether the framers themselves were all zealous democrats/republicans” or not, but “whether the Constitution itself as finally enacted (and amended early on) was strongly democratic/republican when viewed in its legal and historical context.” Going on, he asks, “Why would men with less than fully democratic instincts propose a strongly democratic (in context) document?” As I mentioned earlier, the framers had to make a document that was acceptable to the wider public. (p. 279-80)

The Founders clearly applied many lessons from ancient Rome, yet they were unable to fully heed the warnings of the Greek myths. The siren’s song of populism, a hazard in any democracy, endangers liberty. We shouldn’t tie ourselves to the mast like Odysseus, but we must muffle our ears a little. Even from our beginning, the need to appease populist sympathies in any type of democracy is real. This acts as a strength in probably most cases, but Kluth reminds us of Fareed Zakaria’s Foreign Affairs’ article where he demonstrates to us that illiberal democracy and liberal autocracy aren’t oxymorons. In the balancing act between our democratic and republican ideals and our liberty we must forever cautiously adjust.

Final note. Don’t let any of these posts make you think this author disapproves of democracy – it’s just the liberty stifling aspects of it that I wish to mute. Of course, the fact that others and I need to remind readers that we don’t hate democracy every time we criticize it probably proves my original point.

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