Back in the day when I was a co-blogger on the old Effect Measure, I invited people to think about how they would feel if state government took various emergency measures in response to an infectious disease outbreak -- restricting travel, isolating regions, quarantining people, that sort of thing. My post attracted a very weird, antisocial troll whose basic rant was that she was a constitutional law scholar and all this was settled under constitutional law and therefore I was a complete idiot and an arrogant fool even to ask the question.
My post was not about constitutional law at all. I wasn't asking people whether they thought the measures in question were constitutionally permissible, I was asking whether people personally would approve of them, and under what circumstances. I could not get this person to comprehend, or at least to acknowledge, that these were separate questions.
I am reminded of this strange experience by the lawsuits filed by various right wing extremist state Attorneys General against the Patient Protection and Affordable Care Act. Their fans, it should go without saying, don't know anything about the constitution and have no idea why the PPACA would or would not be constitutional. They just don't like it, or think they don't like it, because they don't understand the legislation either.
Sarah Rosenbaum, in the new NEJM, addresses both halves of this question. She says not to worry, the Act is clearly constitutional. Basically, it's a two part question. Congress has the power to regulate individual activity under the Commerce clause if a) it's part of a "broader regulatory statutory scheme that permissibly regulates interstate commerce" and b) the provision in question -- in this case the individual mandate to obtain health insurance is "essential to the Act's larger regulation of the interstate business of health insurance."
Rosenbaum says both halves are a no-brainer. Not being a lawyer or a constitutional law scholar, as I hereby proclaim lest my long-ago troll show up again, I can't evaluate any of that. But I can say that the teabaggers' objections to the mandate are based on a fundamental misunderstanding of the problem of liberty. Liberty does not mean that you, Pemberton B. Throckmorton, can do whatever the hell you want, because you might just do something that deprives Hermione Q. Binglestrock of her liberty. In this specific case, if Pemberton is run over by a motorcycle, and does not have health insurance, Hermione, and all the rest of us, will be forced to pay for his very expensive trauma surgery, whether we like it or not.
This simple and obvious class of problem easily discredits libertarianism before it even gets started. Therefore, libertarianism is a fortiori arbitrary about exactly which liberties it is for and which ones it is against. Since it is fundamentally a nonsensical philosophy, it is merely an excuse for wealthy and powerful psychopaths such as the Koch brothers to rally dupes in favor of their own dispossession. If the Koch brothers are free to make billions by spewing carbon dioxide into the atmosphere, billions of people will not be free to live on the land they now inhabit.
Liberty involves tradeoffs and competing interests. It has to be managed through some sort of political process in order to share it around with some degree of justice and to enable the commonwealth to prosper. That means you might just have to give something up for the sake of the next person, and government might just have to mediate that. It's not hard to understand.
Thursday, October 28, 2010
Constitutional Law
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