A friend sent me a link to this piece in Forbes about the Founders' "socialized medicine." Ezra Klein at the Washington Post picked it up. One of the MoJo journos I follow on twitter, Nick Baumann, linked to it saying: "Amazing."
Similar to what I commented at Forbes, I tweeted back to Baumann that the law in question dealt with enumerated powers, taxing power and the maintenance of a Navy, so that they fell well-within the proper legal understanding of the Necessary and Proper clause.
Baumann responded in three parts. The one that concerns me is the second one, but his other tweets are here and here. His second tweet, said (with edits for blog clarity):
Ultimately the whole constitutional debate misses the point. We're really arguing about what government should be allowed to do.This way of thinking probably appeals to many people of various political stripes, but to constitutionalists, beyond the rhetorical subtlety that resembles the effect of a Pan Galactic Gargle Blaster, it is akin to saying, "We're not talking about speed limits, we're talking about how fast we can make the car go."
The Constitution is more than a parchment relic that represents the Founding principles of our country: it is the explicit grant and, to my point, the limitation of power given to our federal government. To say that we're talking about the scope of government without recognizing its proper, delineated limits is to miss the point entirely.
Legislating is not a grand philosophical exercise on tabula rasa to decide what idea sounds good right now. Unconstitutional laws usually seem like good ideas at the time -- to the pols who implement them, at any rate. Unchecked, the government regularly acts beyond its proper authority in everything from speech to imprisonment to wiretapping and torture. Just because the party in power has a policy preference doesn't make it legitimate or constitutional.
Given my affinity for team sports, I understand the "look the other way" mentality when your team commits a foul and gets away with it. But when every time Team A stretches the limits of Congress beyond it's constitutional bounds, they directly empower Team B to do the same on their own pet issues--essentially, that's how precedent works. How The winners, of course, are the teams--they get more power so everybody's happy. The losers, however, are the rest of us who get screwed by civil liberties violations or dying in excruciating pain.
I am not exaggerating. Ironically, the government's arguments for the individual mandate of PPACA, the health care bill, rest primarily on Raich, the Supreme Court case declaring that medical marijuana grown in the home for personal use that is legal under state law is somehow regulable under the Interstate Commerce clause in the Constitution.
In a way, Attorneys General John Ashcroft and Alberto Gonzales--by way of unconstitutionally prohibiting state-sanctioned medical remedy for chronic pain--forcing Angel Raich and others like her to live (or die) (yes, die) in excruciating pain or leaving them unable to eat because of unabating nausea during chemotherapy could lead to the Dems' triumph in the PPACA litigation.
I wonder if Nancy Pelosi is going to send Alberto Gonzales a thank you note?
Faithful adherence to the text of the Constitution is the best protection for individual rights in the United States. Relying upon Supreme Court justices to be "smart enough" to reach a decision that jives with your policy preferences invites government overreach and the suffering of countless Americans. (see Korematsu) Given the sorry state of medical and insurance pricing, I would never say that government has no role in attempting to remedy our health care system. That said, one cannot responsibly discard the limits of the Constitution for subjectively "good"--or in the opinion of a lot of PPACA supporters, "better than nothing"--policy: torture seems like a "good idea" to some people. Constitutional restraints should mean something.
Years ago, three years after resigning from office, disgraced former president Richard Nixon gave an infamous interview to David Frost in which he said "When the president does it, it's not illegal." This caused an uproar--yet his logic is in lock step with those who wish not to concern themselves with the limits of government.
At what point did disregard for the law move from the profane to standard public policy?
bellum medicamenti delenda est
