Thursday, June 28, 2012

Three good points on the constitutionality of health reform

Rod Long, responding to what I thought at the time was an over the top claim from Jason Brennan:

""Isn’t the most plausible explanation of this that most legal theorists are intellectually corrupt?"

Surely there's another obvious explanation: the Constitution contains contested terms, and the best interpretation of those terms is quite appropriately inseparable from one's pre-existing moral views. For example, the 5th Amendment calls for "just compensation." It doesn't call for "what we, the framers, currently consider just compensation." It calls for just compensation, meaning whatever compensation is actually just. So of course you can't settle what it calls for without bringing in claims about what's actually just."

"Necessary", "proper", and "general welfare" are also, of course, contested terms. Just because they are contested does not mean they can mean anything or that they have no limit. It just means people are going to disagree on what that limit is. You do not get to pretend the word is window dressing just because it is contested and that makes you uncomfortable.


Judge Posner, quoted by Beverly Mann (this one goes really well with Long's point):

"The chief justice, echoing Justice Scalia's "broccoli" comment at the oral argument, rejected (as did the four dissenters, and so that is now the view of a majority of the justices) the Commerce Clause ground for the mandate, saying that to accept that ground would mean that "Congress could address the diet problem by ordering everyone to buy vegetables." This argument, reassuring though it is to our obese population, confuses separate constitutional provisions. The Commerce Clause would empower Congress to order everyone to buy vegetables, because the market for most vegetables is interstate, but the "liberty" protected against the federal government by the Fifth Amendment would doubtless be interpreted to forbid such an imposition, just as it would be interpreted to forbid a federal law requiring everyone to be in bed with the lights out by 10 p.m. in order to economize on the use of electricity and, by doing so, reduce carbon emissions from electrical generating plants."

"Liberty" is a contested term. Half the posts on this blog are about liberty as a contested term.


Ruth Bader Ginsburg (cause it's basically her job to make good points about the constitutionality of health reform):

"The Necessary and Proper Clause “empowers Congress to enact laws in effectuation of its [commerce] powe[r] that are not within its authority to enact in isolation.” Raich, 545 U. S., at 39 (Scalia, J., concurring in judgment). Hence, “[a] complex regulatory program . . . can survive a Commerce Clause challenge without a showing that every single facet of the program is independently and directly related to a valid congressional goal.” Indiana, 452 U. S., at 329, n. 17. “It is enough that the challenged provisions are an integral part of the regulatory program and that the regulatory scheme when considered as a whole satisfies this test.” Ibid. (collecting cases). See also Raich, 545 U. S., at 24–25 (A challenged statutory provision fits within Congress’ commerce authority if it is an “essential par[t] of a larger regulation of economic activity,” such that, in the absence of the provision, “the regulatory scheme could be undercut.” (quoting Lopez, 514 U. S., at 561)); Raich, 545 U. S., at 37 (Scalia, J., concurring in judgment) (“Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. The relevant question is simply whether the means chosen are ‘reasonably adapted’ to the attainment of a legitimate end under the commerce power.”"


  1. The only “constitutional” experts I would trust are Tom Woods, Kevin Gutzman and Andrew Napolitano. I had the benefit of already being a Rothbardian prior to entering law school in 1977. In “constitutional law” class we were warned by the professor that we were not there to debate the original meaning of the constitution. We were there to learn what burdens upon “interstate commerce” were permissible under then present day court rulings because we were being trained as practitioners to represent present day clients in court.

    Further, at the time it was admitted by the powers-that-be that the meaning of the constitution was changed by the courts during the 1930s because it had to change, since the old laissez faire regime had caused the depression. End of discussion. We never learned a thing about the original meaning of the constitution, including the meaning of the commerce clause or the meaning of the gold and silver clauses. In fact, gold and silver was NEVER mentioned. I doubt if it is ever mentioned today in law schools.

    But since we know from reading Daniel Kuehn that laissez faire doesn’t cause depressions and that wars and central banking does, we now know that the underlying basis for the court’s rewriting of the constitution in the 1930s was baseless.

  2. Original intent in this case would be for the income tax ratified in 1913 and the rulings since. Liberty isn't free, but if liberty is obtainable upon payment of a penalty, it is inexpensive.

  3. I found Rauchway rather revealing as the court was attempting to rewrite the constitution to remove powers from the states before their retreat, as well as the earlier decisions where it overreached in elevating contracts to sancrosanct.

  4. Daniel,

    I have 5 minutes to try to help you out. You won't get it, but so be it. What is truly unfortunate is that you are now attracting flies to a cow pie (Bob Roddis).

    This will be hard for you to accept, but the case about Romneycare was not about the individual mandate whatsover. As Roberts realized, and those of us operating on Feynman level at the practice of law already knew, the Supreme Court had to find in favor of the law. There is just no getting around the need of the modern national government to be able to regulate health care. The idea that this is for states is a joke, when one realizes that the doctor reading your x-ray can as easily be in Mumbai as in the facility where the picture was taken. One only has to project the Internet out a very few years to realize that there is going to be little local about health care, shortly.

    The real battles are questions you have not even contemplated, because you are not a lawyer and lack fundamental insights into where technology and efficiency are taking us.

    Let me give you two three mandates of real moment.

    First, a gov't mandate they everyone have an email address through the post office and that all written communication be by email and email attachment. The technology is here and the cost and environmental savings would be huge.

    Consider just a narrow part of that problem. Today, our legal system is built on the premise that people have the liberty to run and hide from creditors and process servers. If the gov't required everyone to have an email address, game over. This truly would alter the relationship between people and the gov't

    A national id card presents the same issue.

    However, technology isn't going to stop there. Technology eliminates the need for states for every sort of law, license, rule, or regulation. A state driver's license is an anomaly, etc.

    I could go on, and on, put you either get the point or you don't.

    The important case this week was not Romneycare but the Arizona immigration law, with Scalia bitching that states have become meaningless.

    They have. They are dead and just don't know it yet.

    You have learned the wrong things about law and regulation. You have read about finance and banking. You should have learned that no free gov't anywhere has been able to control banking by regulation. Put up a regulation and banks will find a way around such, as long as the underlying economic forces push banks to overcoming the obstacle.

    I don't know when state auto licenses will end, but it will happen, after the fact of when the population reaches the point of saying this is totally stupid.

    I had a client who was a first mover in on this front, many years ago. He lives in suburban Philly, office in Harlem, NY, and made sales calls daily in CN, RI, and Mass.

    States are a relic. Stop confusing the familiar with the necessary.

    And, best of luck with Roddis, who has no insight into whether to mow the grass during this heat and drought.


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