An Honest Question for Lefties

Tuesday, December 14th, 2010

First, read Julian Sanchez on the health care mandate and the Commerce Clause.

Next, I posed this question to Chris Hayes on Twitter, so I’ll pose to those of you who read this site who are outraged by the Hudson ruling: Putting aside what’s codified Bill of Rights, which was ratified after the main body of the Constitution, do you believe the Constitution puts any restrictions on the powers of the federal government?

If your answer is yes, what restrictions would those be? And what test would you use to determine what the federal government can and can’t do? I’ve written this before, but after Wickard, Raich, and now, if you support it, the health insurance mandate, it’s hard to see what’s left that would be off-limits. I mean, during her confirmation hearings, Elena Kagan couldn’t even bring herself to say that it would be unconstitutional for the federal government to force us to eat vegetables every day. (She did say it would be bad policy — but that’s a hell of a lot different.)

If your answer is no, that is, that the Constitution puts no real restraints on the federal government at all, why do you suppose they bothered writing and passing one in the first place? I suppose an alternate answer might be that the Constitution does place restrictions on the federal government, but those restrictions have become anachronistic given the size of the country, the complexity of modern society, and so on. To which my follow-up question would be, do you believe there should be any restrictions on the powers of the federal government? Let’s say, again, beyond those laid out in the Bill of Rights.

I guess to get at the meat of the disagreement, I should ask one more: Do you buy into the idea that the people delegate certain, limited powers to the government through the Constitution, or do you believe that the government can do whatever it wants, save for a few restrictions outlined in the Constitution? It’s not an unimportant distinction. I’m not sure it’s consistent to believe that the government gets its power from the people, but the people have gone ahead and given the government the power to do whatever it wants.

I’m not trying to be cute. I’m genuinely interested in how people on the left answer these questions. Rep. Pete Stark, a liberal Democrat, said a few months ago that he believes there are no constitutional restrictions on what the Congress can do. To hear from a sitting Congressman was refreshingly honest. And terrifying.

Think about what it means.  We have two parties who have rigged the game to ensure that someone from their ranks wins every election, nearly every time. And every 10 years, they gerrymander the districts so as few of us as possible even get that choice. All of which is why reelection rates usually top 95 percent, even though approval ratings for Congress rarely rise above 30. So Congress doesn’t really have to answer to the voters. And it really doesn’t have to answer to the Constitution.

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191 Responses to “An Honest Question for Lefties”

  1. #1 |  Rance | 

    I opened this article thinking you had a question for me since I’m left-handed. Thoroughly disappointed, but I guess I should have known better…

  2. #2 |  Danny | 

    First! (I hope?)

    I am a Lefty. I would also call myself a small-l libertarian, or at least a civil libertarian.

    I would not defend federal farm policy, or federal drug policy, or the health insurance mandate under the commerce clause. I think all three represent commerce-clause over-reach, and are not to be salvaged by the necessary-and-proper clause.

    I think the health insurance mandate as enacted is easily vindicated under the 16th amendment. It is, in substance, an income tax. The politicians reluctance to call it such is utterly irrelevant. To wit, politicians deny that social security taxes are nothing more than regressive earned-income taxes, even though that is exactly what they are under the law, and the notion that they are “premiums” or “contributions” to a retirement system is an utter fiction.

    As for Kagan on vegetables, I think forcing people to eat, or even buy, vegetables would be a gross violation of the unenumerated right to liberty under the 14th amendment. Whether such an abomination fits the commerce clause is irrelevant, because it violates a fundamental right.

    However, under the commerce clause, I can imagine extreme emergency scenarios where people could be obliged to purchase, or even ingest, substances (like anti-chemical/biological-warfare vaccines) by the federal government.

  3. #3 |  Professor Coldheart | 

    (1) Excellent post, and a good question.

    (2) Save this in a file somewhere, revisit it in ten years, change all instances of “left / liberal” to “right / conservative,” make a few minor edits for context, and pop the question again. I promise it’ll still be relevant.

  4. #4 |  Dave Krueger | 

    “…or do you believe that the government can do whatever it wants, save for a few restrictions outlined in the Constitution?

    What are these restrictions you speak of?

  5. #5 |  Andrew S. | 

    However, under the commerce clause, I can imagine extreme emergency scenarios where people could be obliged to purchase, or even ingest, substances (like anti-chemical/biological-warfare vaccines) by the federal government.

    Given that there’s an established right for people of sound mind to refuse medical treatment, how would even an extreme scenario such as that overcome that right?

  6. #6 |  M | 

    I believe the constitution places a lot of limits on the gov’t and they are routinely violated (like DC having no meaningful representation in congress). I also think universal health care would be a really good thing if it were regulated in a way that forced genuine transparency in what things cost and offered a real choice besides “the system we have or nothing”.

  7. #7 |  Yuuki | 

    Article I, Section 9:

    “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;”

    The Constitution gives Congress the power to tax and does not say taxes have to be uniform. Congress has the power to tax people who do not buy vegetables at higher rates than those who do.

    Just to be clear, I do not support Articles I and II of the Constitution.

  8. #8 |  Dave Krueger | 

    As everyone knows, the government can do anything it can get away with (which is pretty much anything it wants). Yeah, yeah, I know there’s a lot of discussion about what’s right and all that shit, but in the end, the rhetoric means nothing. In fact, it merely adds the patina of deliberation to the actions it takes.

  9. #9 |  Jason | 

    Radley,

    There are any number of explanations online for why the mandate is not, from a liberal perspective, unconstitutional. Wouldn’t you be better off engaging with one of those for our education than trolling your comment section for a response to the idea that requiring health insurance is a slippery slope to forced vegetables?

    From my liberal perspective, I would say that those on the left are not especially concerned with why the Founders decided to draft a Constitution in the first place, or place any special magic with that document, which has had to suffer several amendments to guarantee even basic freedoms to huge swaths of our population. There are many powers that lefties do not think the federal government should have – the power to abolish narcotics, the power to launch imperial wars, and so on. I do not think many on the left are concerned with fantasy scenarios about forced vegetables and medicine.

  10. #10 |  BamBam | 

    The Constitution stated that taxes must be in proportion to the census. Amendment 16, which was never legally ratified as proven with documented evidence, changes that to make without apportionment. You are right that the net effect is to be unlimited taxes.

  11. #11 |  lunchstealer | 

    @#3, It was a hells-of-relevant question to the right from 2001-2006/8, and asked (in one form or another) by Balko and his friends at Reason during that time.

  12. #12 |  Freddie | 

    I believe that there are very many restrictions on the federal government. I don’t believe that requiring health insurance is one of them. You make those distinctions the way we all do, by examining the nuances of each individual situation.

    But of course, you know that. You don’t, actually, think that the average liberal believes there are no or should be no restrictions on the federal government. You know very well that the average liberal thinks there are restrictions. In fact, you have a very good idea what the average liberal thinks should be restricted. You know many individual liberal bloggers and pundits who you have read many dozens of times defining limits on the federal government. You know all of that. You aren’t, actually, possessed of the questions that you are pretending you are; you are instead just engaging in rhetoric. Or can you say with a straight face that you are actually unclear whether most liberals think that the federal government should be able to, say, ban interracial dating? I doubt that you can, and yet you claim not to be being cute. Grow up.

  13. #13 |  BamBam | 

    It is ludicrous to think that Congress has unlimited power. The very nature of the revolution, the opening paragraphs of the Declaration of Independence with the long train of abuses at the hands of King George 3, and many other writings indicate very clearly that they suffered enough at the hands of government and were willing to die for an unknown future. They did not do this so that their prosperity would suffer a worse fate, but gee golly you have taxation with representation and can vote. To say otherwise it dishonest, disingenuous, and immoral.

  14. #14 |  Andrew S. | 

    Freddie, did you not see the quote in Radley’s article from a sitting democratic Congressman?

  15. #15 |  Radley Balko | 

    You aren’t, actually, possessed of the questions that you are pretending you are; you are instead just engaging in rhetoric. Or can you say with a straight face that you are actually unclear whether most liberals think that the federal government should be able to, say, ban interracial dating? I doubt that you can, and yet you claim not to be being cute. Grow up.

    I clearly wrote that I was referring to restrictions not covered by the Bill of Rights. Which would certainly cover a ban on interracial dating. I’m also sure liberals don’t think the federal government can ban gay sex or abortion. Those, also, come from amendments passed after the Constitution was initially ratified. I’m not “engaging in rhetoric.” I want to know what restrictions liberals believe the original Constitution places on the federal government. And what principle differentiates those restrictions differ from forcing you to purchase a product from a private company, or preventing you from smoking and growing pot in your own home, or regulating how you grow food on your own land for your own consumption.

    So do you have an answer, or just more insults and questioning of my real motives?

  16. #16 |  Gideon Darrow | 

    @ Andrew S. #13:

    Of course not. He’s “just engaging in rhetoric.”

  17. #17 |  Alex | 

    11- Ok, so he could have added the 14th amendment to the Bill of Rights as the area of exceptions, but otherwise I think you somehow missed the point: if the federal government can force you to buy health insurance, what can’t it do?

  18. #18 |  Salt | 

    We live the Anti-Federalists nightmare.

    For anyone who hasn’t read it, Lysander Spooner’s ‘No Treason: The Constitution of No Authority’ will provoke the thought process.

    http://tinyurl.com/2c23uaw

  19. #19 |  SJE | 

    I am left handed, but not left politically. I think that the extension of the commerce clause to cover pretty much any “economic activity” is ridiculous. It is a pretty clear that the original states would not have consented to this infringement on their rights, and that the post-FDR commerce clause is a path to tyranny.

    What to do? Well, I don’t think that merely dismantling everything is a good idea, as you risk creating a bigger mess or, more likely, a constitutional amendment to give the Feds this explicit power.

    I would like to see some principled application of the 10th and 4th amendments so that fed government action must be necessary for commerce, but only to the minimal extent necessary to not infringe on personal rights.

  20. #20 |  Irving Washington | 

    Not a liberal, and I would revive pre-’30s Commerce Clause precedent if given the chance, but as far as I can tell, the only thing the Commerce Clause can’t cover is purely intrastate criminal activity. I honestly don’t see how the individual mandate ruling can survive.

  21. #21 |  Radley Balko | 

    There are any number of explanations online for why the mandate is not, from a liberal perspective, unconstitutional. Wouldn’t you be better off engaging with one of those for our education than trolling your comment section for a response to the idea that requiring health insurance is a slippery slope to forced vegetables?

    I’m interested in knowing where you draw the line, and what principle is behind where you draw it. Can you actually explain the constitutional principle that gives the government the power to compel me to buy a product from a private company, but wouldn’t allow the government to tell me what I have to eat?

    From my liberal perspective, I would say that those on the left are not especially concerned with why the Founders decided to draft a Constitution in the first place, or place any special magic with that document, which has had to suffer several amendments to guarantee even basic freedoms to huge swaths of our population.

    So what is the purpose of the Supreme Court? And what’s the point of having a Constitution at all? And how do you determine what powers the federal government has? Do you just go with what feels right?

    There are many powers that lefties do not think the federal government should have – the power to abolish narcotics…

    That isn’t true at all. First, I’m not even sure it’s true that most people on the left oppose drug prohibition. And among those who do, I’d also wager that a strong majority don’t believe the government is constitutionally barred from doing so, only that it’s a bad policy. It’s an important difference. I’d guess that nearly everyone on the left feels the feds have the power to regulate illicit drugs — or any drug. And I don’t know how you meaningfully grant the power to regulate without also granting the power to ban. (Again, we’re talking about powers here, not policy.)

    …the power to launch imperial wars

    Again, this just isn’t true. Saying a war was wrong or immoral or bad policy is much different than saying it’s prohibited by the Constitution. Hell, I don’t even think the Constitution prohibits imperial wars, so long as they’re actually declared by Congress.

    I do not think many on the left are concerned with fantasy scenarios about forced vegetables and medicine.

    The idea that you can’t envision it happening is much different than saying you don’t think Congress or the Executive has the power to do it. There are lots of things the government does that I’d imagine most people a generation or two before wouldn’t have thought possible. I’m trying to figure out where you draw the line. You’re saying I’m engaging in misleading slippery slope rhetoric, but you won’t definitively say where the slope gets slippery. You aren’t giving me any principled, hard-and-fast test to determine what the federal government is and isn’t permitted to do. Which seems to me to indicate that aside from a few protections for citizens granted in the Bill of Rights, you believe the only real check on federal power is the ballot box. That is, the government can do whatever it wants, and if the people don’t like it, they’ll vote them out. If I’m wrong, please explain. Tell me what check would prevent Congress from taxing people who don’t eat a daily serving of vegetables, or forcing everyone to buy a car to stimulate the economy, or to buy life insurance. “It’s a stupid policy that would never happen” isn’t an acceptable answer. Congress does stupid things all the time.

  22. #22 |  Steve Verdon | 

    I suppose an alternate answer might be that the Constitution does place restrictions on the federal government, but those restrictions have become anachronistic given the size of the country, the complexity of modern society, and so on.

    There is a quote by Mussolini that echos this very same sentiment,

    “We were the first to assert that the more complicated the forms assumed by civilization, the more restricted the freedom of the individual must become.”

    In short, lefties who think this way are…well…fascists.

    You aren’t, actually, possessed of the questions that you are pretending you are; you are instead just engaging in rhetoric. Or can you say with a straight face that you are actually unclear whether most liberals think that the federal government should be able to, say, ban interracial dating? I doubt that you can, and yet you claim not to be being cute. Grow up.

    I think the problem for many liberals/lefties is that they have an incoherent world view. They have formulated a grab-bag of policy positions they like, but when you look at several of them at once there is no underlying principles that would allow an outsider to formulate a coherent view of other issues. For example, banning interracial marriages would not be something many liberals would want, but at the same time telling people that they have to buy health insurance isn’t a problem. In one example you have a policy that is aimed at removing government coercion, but in the other you fully advocate its use.

    You’ve stated this is the case yourself:

    You make those distinctions the way we all do, by examining the nuances of each individual situation.

    At best you are a pragmatist. This means you’ll consider a policy as acceptable so long as the benefits outweigh the costs. Problem with this is that it can lead to rather disturbing policies if it isn’t counter-balanced with something else. What that something else is you have so far refused to say and accused Radley of having ulterior motives.

    Or, TL:DR version: you don’t think there are any restrictions except when you think there should be…which is rather incoherent.

  23. #23 |  Dave | 

    @ Steve Verdon

    Very nice answer. I think you hit the nail on the head.

  24. #24 |  lunchstealer | 

    I think there also needs to be some caveat here that we’re talking about not separation-of-powers between the branches, too.

  25. #25 |  Judas Peckerwood | 

    I consider myself left/libertarian, and I consider the mandate to purchase health insurance from a private firm an abomination.

    I do support a single-payer health care system (a la Medicare or the Canadian system) for everyone, albeit with some pretty substantial anti-corruption and anti-waste reforms.

  26. #26 |  lunchstealer | 

    Wow. The above may be the worst sentence I have ever written. Let me engrammarize that.

    I think we need to be clear that when we ask if there are limits on Federal power, we exclude both the Amendments, and inter-branch separation-of-powers limits.

  27. #27 |  lunchstealer | 

    @#12 – It sounds like you are saying that there are any number of restrictions on the Federal Government, but many of the examples you’ve given are either based on the Bill of Rights or later Amendments, or they’re based on 19th-and-20th-Century moral philosophy, meaning they don’t have the power to commit foreign genocide, or to begin unjust wars. But neither of those is based in the un-amended Constitution itself, but rather in treaty obligations or in more nebulous ‘international law’.

  28. #28 |  Gideon Darrow | 

    @ Steve Verdon #22:

    “I think the problem for many liberals/lefties is that they have an incoherent world view. They have formulated a grab-bag of policy positions they like, but when you look at several of them at once there is no underlying principles that would allow an outsider to formulate a coherent view of other issues.”

    That problem’s not just limited to liberals. I’d say that most people (left AND right) either:

    a) Pick and choose whatever position on a given issue “feels right,” without relying on any philosophical foundation [kind of analagous to the conservative complaint against Justice O’Connor that she had no coherent judicial philosophy (like, say Scalia) and just “called ‘em like she saw ‘em”], or

    b) Blindly follow the platform of whichever party they’ve deluded themselves into thinking is less corrupt than the other, paying no attention to all the internal inconsistencies and contradictions

    In other words, most people probably haven’t thought their political beliefs through to this kind of a fundamental level, which is why they find it so easy to embrace (among other things) sweeping powers for the federal government when “their guys” are in charge.

  29. #29 |  t1 | 

    Putting aside what’s codified Bill of Rights, which was ratified after the main body of the Constitution, do you believe the Constitution puts any restrictions on the powers of the federal government?

    If that is your actual question, then the answer is, without question, that there aren’t any real restrictions.

    If you want to include the Bill of Rights, then you get to the 10th Amendent which states:

    “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

    But even then, what is actually delegated is nearly infinite:

    “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States”

    “provide for the … general Welfare” would seem to include just about anything. And even setting that aside, Congress could easily _tax_ everyone who does not buy health insurance at the rate equivalent to what it would cost them to buy health insurance. Without question that would be within Congress’s explicit constitutional powers.

    The only real limitation on the powers is contained in the requirements regarding election and amendment.

  30. #30 |  PW | 

    Our government is an unlimited government. It has been for a long time. And for the same reason it is an illegitimate government.

    “Nevertheless, the writer thinks it proper to say that, in his opinion, the Constitution is no such instrument as it has generally been assumed to be; but that by false interpretations, and naked usurpations, the government has been made in practice a very widely, and almost wholly, different thing from what the Constitution itself purports to authorize. He has heretofore written much, and could write much more, to prove that such is the truth. But whether the Constitution really be one thing, or another, this much is certain — that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.”

  31. #31 |  Captain Noble | 

    Radley, what do you think about the idea put forth here: http://www.prospect.org/cs/articles?article=averting_a_health_care_backlash ? Basically, instead of the mandate as currently structured, people could opt out, but they would have to sign a form saying they could not buy in for five years.

  32. #32 |  Sydney Carton | 

    Radley,

    The reason why you won’t get an honest answer on this from any liberal about the structural limitations on the original, un-amended Constitution, is because a liberals’ reason for politics is not organized around any philosophical principle which would limit government at all. The core organizing force around liberalism is the “vision of the annointed” (as Sowell has put it): a sanctimonious rule by a self-selected few who, because of their so-called greater empathy, knowledge, and understanding, should tell everyone else how to run their lives.

    You could basically ask the same question about the Constitution as amended today. The answer you’d get from a liberal would be that, yes of course, government can’t ban things like gay sex, or interracial marriage, etc. But those answers would not be because a liberal agrees with the concept of a government of limited powers. Those answers would be given because a liberal is incapable of distinguishing between policy preferences and the fundamental structural organization of government/civilization. That’s why your original question about the un-amended Constitution is, at best, nonsensical to the liberal mind: it literally cannot be processed as asked. The original, un-amended Constitution says nothing about whether a federal church can be established. To a liberal, asking if that is permitted or prohibited depends on whether the liberal zeitgeist in contemporary society today thinks it should be permitted or prohibited. Same thing for equal protection under the law. The original constitution says nothing about that. Ask a liberal if the original Constitution permitted or prohibited things like segregation, and that will depend again if liberals are in favor of segregation today or not. A person with no limiting principle only uses their policy preferences to define the boundaries of their action. Today, a liberal might say that the Constitution permits criminalization of incest. Tomorrow, they might say differently. Today, a liberal might say that the Constitution has no limits on forcing a person to buy a product. Tomorrow, a liberal might say that the Constitution can’t require people to get haircuts.

    At its base level, a liberal just fundamentally rejects that structural social and political constraints might inhibit their visions of society. And that is why liberals are so akin to fascists, because they eventually run up not against political and social constraints, but the constraints of individuals who refuse to go along with their program. Like the French Revolutionaries before them, when that time comes it’s “off with their heads” and the revolution must proceed.

  33. #33 |  Wesley | 

    Radley, you are engaging in an ultimately futile effort here: asking for principles. Most people do not form political or moral or any other type of conclusions based on reasoned consideration of facts and principles. Instead, their knee-jerk reaction carries the day, and all the babbling after that is just an ad hoc attempt to justify it.

    I doubt there are many self-labeled Democrats who could give you an answer about where to draw the line on federal power. The federal government can do whatever they (the Democrats) would personally like, and shouldn’t do whatever they personally dislike. They could give you examples of each, but ask for a coherent principle behind those decisions and you will get a blank stare (except for “get reelected” when it comes to Democratic politicians).

    This analysis also applies to Republicans and probably to a fair number of self-labeled libertarians as well. It is unfortunately very rare for people to be able to distinguish between what they personally want and what the government should be able to force on everyone else. Many people probably don’t even realize they should be making such a distinction.

  34. #34 |  PW | 

    There was a time not too long ago when the Supreme Court properly interpreted the taxing power as a limited one, even in the post 16th amendment era. The rule they applied required that a tax must generate revenue as its primary purpose in order to be considered constitutional.

    “Taxes are occasionally imposed in the discretion of the legislature on proper subjects with the primary motive of obtaining revenue from them and with the incidental motive of discouraging them by making their continuance onerous. They do not lose their character as taxes because of the incidental motive. But there comes a time in the extension of the penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment. Such is the case in the law before us.” – Bailey v. Drexel Furniture Co., 1922

  35. #35 |  Steve Verdon | 

    Gideon,

    I agree, I was only limiting myself to the Left since that was who the question was aimed at. However, I think the same can be said of those on the Right. It isn’t all of them (Right or Left) but a large segment of those two groups.

    Rest,

    Also, the Article I, Section 9 part on taxes I think many are forgetting that the idea behind those taxes was to tax commerce or prohibitive (sin taxes for example). Taxing people for NOT buying health care fits with neither of these two views.

    Of course, the SCOTUS often tends to side with the government on its ability to tax things…anything. So whether or not this was what was initially intended we can count on the Supremes to pretty much sing in harmony with Congress on this, in the end.

    For all intents and purposes there is virtually nothing that is outside the purview of the Federal government if they want to regulate it so long as it can, in some vague way, be traced back to inter-state commerce. Sure its fun to make jokes about federal guide lines on eating vegetables everyday, but chances are such a law would be found Constitutional these days.

    So gay sex, interracial dating, etc. are outside the scope of the Congress’ powers. However your backyard garden, your quilting hobby, and that home made beer making are all potentially taxable/subject to regulation. And if you fail to comply…well over there are some nice gentlemen with stun guns, pepper spray, access to a database with your name in it, guns, and body armor who want to do unpleasant things to you, like lock you up for a very long time.

  36. #36 |  PW | 

    #35 – Even in Article I, Section 9, the purpose of those taxes was NEVER to coerce a certain behavior in the absolute sense.

    Up until the 1930’s the court consistently and properly interpreted the tax power as a limited one. Taxes had to have a PRIMARY revenue-generating purpose, and other purposes had to be incidental.

    The Obamacare “tax” has absolutely no meaningful revenue-generating purpose, and its punitive design is its EXCLUSIVE purpose.

  37. #37 |  Standard Mischief | 

    Dave Krueger said:
    >What are these restrictions you speak of?

    Seriously? You read the fscking thing and didn’t find *any* limits?

    Well, let’s start at Article 1 Section 1, where it clearly grants *all* legislative powers to congress alone. I don’t see anywhere where those lawmaking powers can be delegated to unelected executive branch appointees.

  38. #38 |  t1 | 

    All this talk about principles is just really dumb. There aren’t any constitutional “principles”. There is what the constitution says.

    If people want to prattle on about how all of their opinions spring logically from certain core philosophical principles, that’s fine. Good for you. But that ain’t got nothing to do with what the constitution says.

  39. #39 |  JP Uno | 

    I think Radley’s question is fair, but it also demonstrates why the Left has so much trouble engaging with the Libertarians who would be their natural allies on 50 different issues in a better world. In short, the publicly asserted Libertarian viewpoint appears to have one major, overarching principle supporting it above all others: that there is a single, self-evident, and clearly delineated meaning to every inch of Constitutional text. This is an appealing point of view: in this world, the limits of the Law are clearly delineated by the Constitution, the Law is King, and those who support Law which is not Constiutionally sanctioned are acting wrongly.

    I think most people would agree that A) Libertarians believe strongly in this principle, by and large, and that B) it’s a pretty good guiding principle. But a major problem arises for Liberals, who would say: The Constitution is a fairly short document written in fairly broad terms, such that it is often unclear how to interpret the text, especially in modern situations. The Constitution might be able to provide a framework for how to deal with an issue such as the extent to which the Federal government can regulate, say, television commercials, but the idea that it’s just crystal clear in some ab initio way to anyone who reads the text seems fallacious at best, and downright silly at worst.

    What’s occasionally offensive about the type of Libertarian ideologue I describe above is the same characteristic that makes his thinking so appealing: an insistence that it is clear-cut, obvious, and transparent as to the exact delineation of government powers put forth in the Constitution. There are numerous instances where this approach just doesn’t work. For example, does the death penalty qualify as cruel and unusual punishment or doesn’t it? You can’t answer this question simply by staring at the Constitutional text for a long enough period of time, you have to bring in outside sources (thus, we have precedents, case law, etc.), because the phrase “cruel and unusual” is open to interpretation (the Supreme Court’s history with the issue over the years should make that clear, at least for practical purposes). I think that many Liberals would say that the power of the federal government to regulate trade in all kinds of ways is even more open to interpretation, and the Supreme Court appears to agree.

    Libertarians often try unconvincingly to make the argument that their opponents’ policy positions are not only wrong, but are definitively, obviously Unconstitutional. The better strategy when arguing for smaller government is the one Radley has chosen to pursue in his work, namely, discussion of government misdeeds, injustices, and waste geared toward convincing people like me (a small “L” liberal, and now also generally a small “L” libertarian too after many years of reading The Agitator, Reason, Unclaimed Territory, Popehat, etc.) that his policy positions are correct, that greater powers should be handed to the government only with the utmost caution, and that we should always be on the lookout for ways to reduce the influence of government in our lives. For my money, reading our incarceration statistics or learning about our corrupt and wasteful Department of Agriculture is much more convincing than listening to someone claim that anyone who thinks the government is not Constitutionally prohibited from forbidding you to own a tank must be part of a “sheeple” pack.

    So to sum that all up, it appears that Libertarians see it as a strength to have an unbending notion of the Law, based on a self-evident set of timeless interpretations, and Liberals see that as as weakness. Vice versa, Liberals believe that other principles must come into play when interpreting the Law, and Libertarians appear to see this belief as opening the floodgates for virtually any government overreach. On the whole, you could say that in that case I “don’t think there are any restrictions except when you think there should be,” but I would simply point out that the same is true for libertarians, conservatives, or, well, anyone. The notion that your lines in the sand make more sense if they are based rigidly on textual Law is extremely appealing, but it provides a false sense of security because the text is too difficult to interpret for all possible situations. It’s easy to argue that taking things case by case is weaselly, but the world and the Law are so complicated that a failure to consider individual situations is even more irresponsible.

    Apologies for rambling on a bit. A detailed question deserves a detailed answer, and I hope I’ve characterized both the Libertarian and Liberal positions fairly. Thanks for keeping me thinking.

  40. #40 |  SJE | 

    To those on the left who think Radley is being unreasonable or ridiculous in saying that the government could tell you what to eat: WHY NOT. Explain where there is a limitation on the government’s powers. The only answer given is that it would not happen, it’s not reasonable. That is not an answer to Radley’s question. Moreover, government has shown a willingness to ban anything it decides it doesnt like for whatever reason, even if its stupid.

    I am old enough to recall the health warnings on cigarette packets, and the doom and gloom people saying that the government was trying to ban smoking. Well, 35 years later, smoking is pretty much banned in many places.

    Marijuana, opiates, cocaine were legal for centuries. Suddenly they were not.

    Alcohol was legal for centuries. It was not, for period in living memory.

    Drinks containing alcohol with caffeine are banned.

    If you are dying of cancer, and someone invents a drug that might be the only thing to save your life, you cannot take it without FDA approval. Its illegal.

    If you want to drink unpasteurized milk, you cannot buy it from a farmer. It’s illegal.

    If you want to smoke Cuban cigars, you cannot in the USA. It’s illegal.

    Even VISITING Cuba is so restricted as to be illegal, even though all of your activities occur OUTSIDE the USA. I’m no fan of Castro, but I’d wager that Cuba is far less repressive than many other countries, including perhaps China. Whatever:why does the Federal govt have any right to ban US citizens from visiting Cuba?

    So, if the Federal Govt already bans all sorts of things you might want to put in your body, why not ban bacon or salt?

  41. #41 |  Peter | 

    As a genuine pinko lefty, let me say that I find the health care “reform” bill to be a corporatist abomination. The mandate that all citizens purchase a certain product from private companies is absurd, and it’s nice to see at least one court strike it down.

  42. #42 |  JP Uno | 

    @40:

    It is not in any way intellectually inconsistent to say that you believe the government has enormous powers on Constitutional grounds and also say you hope to God they don’t use those powers. What part of the Constitution makes it clear that the government cannot regulate bacon or salt? If it is so obvious as to how Constitutional Law should be interpreted, why do we have such vociferous debates about it. I’m not happy with a situation where any idiot Senator can gin up votes by getting a bill passed making it unlawful for baseball players to cheat at their sport, but just because I don’t like it, that doesn’t make it Unconstitutional. A lot of the comments here accuse liberals of conveniently believing that everything they want the government to do just “happens” to be Constitutional, but that appears to be a disease not limited to the Left.

  43. #43 |  b-psycho | 

    Sydney #32:

    The core organizing force around liberalism is the “vision of the annointed” (as Sowell has put it): a sanctimonious rule by a self-selected few who, because of their so-called greater empathy, knowledge, and understanding, should tell everyone else how to run their lives.

    That’s the organizing force around all government, whether involving “liberals” or not. If people with political power didn’t think they somehow knew better than everyone else, why would they even seek that position (that is, beyond outright personal gain)?

  44. #44 |  sigh | 

    “I’m not trying to be cute. I’m genuinely interested in how people on the left answer these questions.”

    You’re probably wasting your time, at least when you’re asking these things of people who define freedom as freedom from something, rather than freedom to do something… and then refer to the latter “negative freedoms”. This goes well beyond the simple question of our Constitution.

    Some people simply want what they want, and to hell with the hows and whys – and what they want is a world with padded corners paid for with money taken at gunpoint. And, naturally, the grand plan will only work if everyone pitches in.

    The first thing that a libertarian needs to understand is that some people NO NOT want to be free… and that your freedom is inimical to that, either materially or in their imaginations. Some of these people might as well be aliens, as far as you’re concerned.

  45. #45 |  JP Uno | 

    A lot of the comments here seem to be implying that, whatever liberals might say to justify their policy positions, their real motivations are darker and more nefarious ideological commitments to controlling other peoples’ lives. I am curious as to how you can be so certain; isn’t this similar to the oft-repeated argument that libertarians are just “Republicans who want to smoke pot and not pay taxes”?

  46. #46 |  SJE | 

    #41: You are twisting my words.
    I am not saying it is intellectually dishonest to say that the government has unlimited powers and HOPE it doesnt use them….I think that is exactly right. I DO think it is intellectually dishonest to say that the government WILL NOT USE THEM, as if the fact that an exercise of some power would not happen because it would be stupid.

    The issue is to engage with the assumption that we shouldnt worry because the government wouldn’t do bad or stupid things. There seems to be a working assumption on the left that the government is generally good. I agree that the government is generally good, but I still don’t trust it.

    If you (“you” meaning a generic person, not #41 specifically) believe that the Constitution has almost no constraints(which is generally accepted by the left), are you willing to live with that belief? What do you believe is the role of Constitution? What do you believe constrains the government, especially when there is plenty of evidence of abuse?

    If you believe that the Constitution does constrain the government, what is the working model of constraint?

    So far, the right has established various working models of the Constitution as a constraint on government. The left, not so much, at least since the 1960s and early 70s, when it used the Constitution to advance civil rights. With many of those rights now eroded, what principles in the Constitution do you use to restore those rights?

    If the police barge into your house and accidently kill your family, and there is no state law to help, what do you do?

  47. #47 |  SJE | 

    “A lot of the comments here seem to be implying that, whatever liberals might say to justify their policy positions, their real motivations are darker and more nefarious ideological commitments to controlling other peoples’ lives.”

    A lot of people are not. I think that the left goes from a working assumption that government is a force for good, and resists constraints upon government. I don’t think that this is nefarious, just overly optimistic. As they say, “if men were angels….”

  48. #48 |  Gideon Darrow | 

    @JP Uno #41:

    “What part of the Constitution makes it clear that the government cannot regulate bacon or salt?”

    The part that doesn’t give them the power to do that. You seem to be operating under the assumption that if the Constitution doesn’t explicitly prohibit the federal government from exercising a given power, it must allow the government power. But the Framers meant the Constitution to operate under exactly the OPPOSITE default rule: They gave certain expressly enumerated powers to the federal government, with the express understanding that those were the ONLY powers the government could exercise. Clearly, the federal government can’t exercise power that the Constitution doesn’t give it.

  49. #49 |  greg | 

    restrictions on government?!?! You do recall the “steroids in baseball” hearings. They aren’t content to screw with just our industries, they even get involved in games!

    JP UNO
    What part of the Constitution makes it clear that the government cannot regulate bacon or salt?

    The part where it doesn’t mention bacon or salt not mentioned. They are enumerated powers.

  50. #50 |  JP Uno | 

    @47:

    I simply believe that the combination of the power:

    To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.

    with the power:

    To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

    means:

    The Federal Government has pretty broad authority over commerce within the U.S., which in turn makes it hard to argue that the Constitution in its original form does not allow regulation of bacon (unquestionably, they can regulate interstate sales of bacon; some would argue they can regulate intrastate bacon too if it helps them achieve a separate goal that is Constitutional, but I don’t necessarily agree with that).

    Frankly, I think that we have many protections against tyranny in our system arising not from the original document but from the following Amendments, and I think those protections are in some cases quite strong, so in some ways the whole discussion is moot without inclusion of the entire document.

  51. #51 |  skunky | 

    As a “liberal”, not sure what the point of discussing the “original” Constitution does or doesn’t restrict, which never really saw any time in the sun without the Bill of Rights and subsequent amendements. And there were no capital-L Liberals around then anyhow.

    the whole point of the amendments is to restrict Congress’s lawmaking. And the original Constitution wouldn’t have been ratified without the Bill of Rights so it’s completely moot.

  52. #52 |  random guy | 

    “All of which is why reelection rates usually top 95 percent, even though approval ratings for Congress rarely rise above 30. So Congress doesn’t really have to answer to the voters. And it really doesn’t have to answer to the Constitution.”

    This is the miracle of democracy. The ruling class is elected so their crimes are really mandates from the people, but the system is rigged so the people have no choice. The government can get away with anything and be forever blameless.

    Any powerful entity will do whatever it wants until checked by other powerful entities. This is the foundation of the separation of powers, a government divided and fighting itself to keep the people out of the fray. Unfortunately the government has gone all “same team” on us. They all realized that the constitution is a piece of paper and that so long as it doesn’t cause mass riots they can pretty much do anything. So they take away liberty and dignity piece by piece. Each injustice is no worse than the last, but the sum result is tyranny.

    Jefferson said in order to water the tree of liberty we would need to spill blood every twenty years. We have sitting government officials argue openly that there is no restrictions on their power, this is not a trend that will reverse itself. No one gives up power freely. Freedom isn’t popular either, so don’t expect much help from the scoundrels next door.

    Anyone even remotely interested in freedom has a long hard fight ahead of themselves.

  53. #53 |  SJE | 

    #49: The SCOTUS has ruled that Congress has pretty broad authority over interstate commerce. However
    1. The reductio ad absurdum of the SCOTUS has failed to find anything that constrains that power, except in rare occasions.
    2. The key point is that “commerce” encompasses almost everything. The originalists would argue, for good reasons, that SCOTUS jurisprudence on “commerce” goes too far.
    3. An important barrier to an originalist argument are prudential and practical: if you overthrow the previous interpretations, you create chaos, and so SCOTUS tends to rule narrowly. Also, no one is going to allow a bomb-throwing radical on the court.
    4. I would like to see more vigorous enforcement of the other aspects of the constitution, so that the regulated activity has to be pretty clearly commerce and has to be only as far as necessary to achieve the goal of regulating commerce. So, interstate trucking and banking is OK. Some FDA rules: go too far.

    If a lot of STATES don’t like something, like drugs, they can get together and pass their own damn laws….they do coordinate a lot of laws together because there are good reasons to have states being more similar than different.

  54. #54 |  Francis | 

    To Steve Verdon: do you think that analogizing your political opponents to fascists is in any way useful? And by the way, have you yet stopped beating your wife?

    Radley: There are substantive, procedural and institutional limitations on the power of the federal government. The substantive limitations are found in Amendments 1-10. Procedural limitations are found largely in Amendment 14. Institutional limitations are, well, institutional; largely by habit the Congress has left certain areas of the law to the discretion of the states. These include intrastate criminal law, family law, most contract law, and most property law.

    As to the point about writing it down: In my (leftyish lawyer) point of view, there have been two critical amendments to the Constitution relating to the power of the federal government, both of which have been ratified by the people.

    The first, following the Civil War, is reflected in the 14th Amendment. The union of several states was dissolved and a single Union was formed. Once the BoR was incorporated against the States, the Congress had to have the power to make that incorporation effective. Thus, the 14th Amendment is properly seen as an enormous (and intended) expansion of the Commerce Clause.

    The second arose in the Great Depression. Not many people still alive were adults in the Great Depression, so it’s hard to find first-person testimony about just how close this country came to collapse. The Bonus Army’s march on Washington brought this country to the naked edge of insurrection, according to my (now-dead) grandfather. FDR’s promises to the country of a New Deal was a promise to expand the power of the federal government to address the problems caused by the Depression. He was made President three times.

    So we live today not only with the “original public understanding” (assuming such a thing exists) of the Commerce Clause of 1789, but also the understanding of the 14th Amendment and the contract made, re-made and re-made again between FDR and the electorate.

    So, what limits lie on the power of the federal government? It’s a fact-specific question. Can the govt punish me for not eating vegetables? Well, I guess the govt could impose a VAT on meat and fat, but not veg. Can the govt require me, however, to keep a log of what I eat every day and pay taxes based on that log? No. There exists a liberty principal in the 5th amendment that stops the govt from going so far. Can the govt punish me for buying a Ford vs a GM? I doubt it; I think Ford would have a great equal protection argument. What about a low-mileage vs a high-mileage car? Yes. We already pay gas taxes, which are levied based on how much gas you burn.

  55. #55 |  Mattocracy | 

    I think a better question is how people define freedom. As someone stated above, some people see freedom as freedom from something, some see it as freedom to do something. Free from high rent, high medical costs, tainted foods, risky behaviors. Freedom from these things are worth any price, even stealing from your neighbor.

    Some of us want freedom to assume the risks and don’t expect our neighbors to flip the bill. Depending on your world view, that changes what words you focus on in the constitution. The former focus on “General Welfare” and “regulate commerce” and see this as unlimited power to do good. The latter focus on the part that says “that says powers not granted are given to the people” as a means of protection from tyranny.

    For a liberal, healthcare is commerce, commerce can be regulated, therefore the government has the power to force us to purchase it. For a libertarian, it’s not specifically mentioned, therefore healthcare decisions and procurement are referred back the people.

    We focus historically on a few founding fathers. Jefferson, Adams, Washington and the others who became high ranking elected officials. But there were plenty of others who helped to write the constitution who didn’t have any intentions of having a free country like our better known founders. The constitution was made vague and broad for a reason-so whoever is in charge can interpret it any way they want. Before the ink dried, American politicians to started arguing whether the document was a justification for power or a means of restraint.

  56. #56 |  adam | 

    I have been accused of being on the left. I don’t think the government should be able to stop me from doing anything, that doesn’t harm somebody else. If, I or anyone over the age of 18 wants to put a substance in my body. It’s my body. If I want to drive 120 mph on a nearly empty interstate, I should be able to. I have health and car insurance so taxpayers won’t be picking up the tab. If I want to pay or be paid for sex, it’s my body. If I want to carry a gun (sober) I should be allowed. I am an adult, I work, pay taxes, and own land. I should be allowed to do anything I want that doesn’t harm other people.

  57. #57 |  Doug | 

    Radley, I’ll answer as best I can, and make a good faith effort to show the limitations that I believe exist in the Constitution.

    Obviously, Article 1 Section 8 lists the things the government is allowed to do. Section 9 specifies off-limit activities. But I believe the implied language of Section 8 also shows what the government can’t do. By saying it is allowed to “regulate commerce . . . among the several states” that means that the government is to “keep regular” the commerce between the states. For example, no state can impose duties on the product of another state without imposing duties on the product of all states. Uniform laws of bankruptcies mean that the GM and Chrysler deals shouldn’t have gone through, since those required new laws to be passed (shafting bond-holders and white-collar pensioners in the process, if I remember correctly).

    (As an aside, how is it the federal government bans instate health insurance, but decides it can “regulate” it at the same time? Each seems to be mutually exclusive . . . but that’s what I get for thinking.)

    It’s not like the Constitution is written in some archaic language that people can’t understand nowadays. You have to try to weasel your way around word definitions in order to believe that the commerce clause means “the government can force individuals to engage in commerce even when the individuals don’t have any money to do so.”

    But when you have a Congress that thinks it costs the government money to implement a tax cut, and when an increase of 3% instead of 5% is “slashing funding,” is it really so hard to believe that we have a bunch of crap-weasels running the country?

  58. #58 |  Doug | 

    Of course, I’m not a leftie, so maybe that question wasn’t directed at me . . . . Stupid pain medication. Maybe next time I’ll read the entire post, including the title.

  59. #59 |  Mattocracy | 

    So if the FED’s are allowed to create laws telling me I have to buy health insurance and eat vegetables, why can’t they pass laws that keep certain people from getting married and keep us from doing drugs? Drugs=interstate commerce and marriage is a contract, right? Why are certain rights of self determination more important than others?

  60. #60 |  Michael Chaney | 

    To Steve Verdon: do you think that analogizing your political opponents to fascists is in any way useful?

    He’s not “analogizing”, just showing that it meets the definition.

  61. #61 |  luvzbob | 

    The constitutional problem is that the founders intended the constitution to be modified, updated on a regular basis, to meet extent needs. The founders couldn’t have anticipated say, the interstate highway system, and they knew they couldn’t. The failing of americans has been to not significantly update the constitution as needed, which has resulted in a need to distort and re-interpret it to fit current needs. In 1792 the states were much more significant entities, driven by the fact that nothing travelled at more than 3 miles an hour. Today, state boundaries have all but disappeared for commercial and economic purposes, but the constitution hasn’t adjusted. In stead we have had expand the commercial clause to meet the needs of a world were state boundaries aren’t as significant. The elastic commerce clause then becomes meaningless, or continually re-interpretetable. What should have happened is that some reasonable adjustment should have been made to suit the needs (specifying perhaps what areas of commerce would be considered interstate and what would be left to the states.)

    Its the weird veneration of the constitution as perfect and inviable that has created a situation we are forced to stretch and twist it beyond recognition. Some of the stretch is necessary to live in the modern world – so it should be done overtly and specifically.

    “why do you suppose they bothered writing and passing one in the first place? ”
    The primary reason for the constitution is to establish the forms of government, not define its limits of power.

  62. #62 |  Boyd Durkin | 

    Radley wrote:

    I’m interested in knowing where you draw the line, and what principle is behind where you draw it. Can you actually explain the constitutional principle that gives the government the power to compel me to buy a product from a private company, but wouldn’t allow the government to tell me what I have to eat?

    IMHO, I believe Radley is trying to get someone (this time from the Left) to actually go on record as to your principles. Then, we can beat you over the head with it when you abandon your principle for the shiny new expansion of government or to sand-panty the Right.

    Radley’s question should be easy to answer. The squirming about how wrong the question is…is an answer itself.

    @#37, simmer down. Does Dave’s post really need an explanation?

  63. #63 |  JOR | 

    As a legal nihilist, I of course believe leftists/liberals are 100% correct to reject constitutionalism (when and where they do). Asking “But then how do we decide policy? Do we just go with what feels right?” is sort of like asking “Well how do we decide what the constitution should say? Do we just go with what feels right?” It creates a false dichotomy between authoritarianism and irrationalism/ethical antirealism.

    I also note the continued insistence that one whose beliefs don’t fit into your paradigms must therefore be an unprincipled pragmatist. Again, this is annoyingly similar to Christian apologetics that insist that you can’t accept moral realism without embracing theism, and/or that anyone who doesn’t share their very particular set of moral beliefs must thereby be a “moral relativist”.

    This is not to say I agree with liberals about much of anything else. I’m a cranky moralistic market anarchist, after all.

  64. #64 |  t1 | 

    “I believe Radley is trying to get someone (this time from the Left) to actually go on record as to your principles. ”

    ———

    Again, one’s principles have nothing to do with what powers are given to Congress under by the Constitution. You do realize that the Constitution itself was the result of compromise and not of some lofty, undiluted “principle” don’t you?

  65. #65 |  Mattocracy | 

    “The primary reason for the constitution is to establish the forms of government, not define its limits of power.”

    That’s a matter of opinion. For many of the framers, the primary goal was to ensure a government with restraint. Hence the bill of rights came immediately afterwards that protected free speech, protected guns, protected privacy, etc. The Bill of Rights was passed because many framers were scared shitless of the power created in the constitution and that it sufficiently protect citizens from an over bearing government.

  66. #66 |  JOR | 

    To further note: Not all liberals have the same moral beliefs (or accept the same meta-ethics); some of them are “pragmatists”, much like classical conservatives, some of them are utilitarians, some of them are some kind of moral relativist or other antirealist. But this is also true of libertarians. Plenty of people who favor libertarian policies (ranging from moderate libertarianism to minarchism to anarchism) are utilitarians, or pragmatists, or moral skeptics/nonrealists; none of the above have any real use for principles (except utilitarians, when they’re wearing their rule-utilitarian hats).

  67. #67 |  Peter | 

    Bills of attainder and ex post facto laws are banned.

  68. #68 |  Pete | 

    Radley, I think the questions would have been better posed to liberals AND conservatives, and the learning moments would be those in which each individual of whatever stripe justifies what they believe in using the same the logic the other striped fellow used to justify what the first DOESN’T believe in.

    Like, commerce clause being the enabling foundation for the war on drugs, but hey it totally doesn’t apply to health care.

    Or vice-versa.

  69. #69 |  ClassAction | 

    There’s only one intellectually consistent method of constitutional construction, and that’s “original meaning” originalism. The Constitution means what it says, and the meaning of words is determined by the original understanding of the words when they were written. This is basically contract law constitutionalism, and although it’s intellectually consistent, it doesn’t make any sense if you don’t believe the Constitution constitutes a valid and binding contract on anyone living today (which it doesn’t).

    No alternative form of “living constitutionalism” has ever had anything approaching an intellectually consistent methodology. You just end up with an grab-bag approach to constitutional decision-making where atomized decisions are justified on an ad hoc basis by meaningless appeals to penumbras. Sometimes it’s the right call, sometimes it’s the wrong call. But whether it’s the right call or the wrong call has little to do with the constitutional “reasoning” that gets you to the result.

  70. #70 |  Greg N. | 

    In the Declaration of Independence, Jefferson wrote that governments derive “their just powers from the consent of the governed.” Note the plural “powers.” That means that governments don’t have plenary power, nor was such a general transfer of power (singular) intended.

    What was intended? Madison explained it in Federalist 45:

    “The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”

  71. #71 |  BillC | 

    “Leftie” here. I think it is unconstitutional and I think the Health Care Reform Law is mostly crap.

    I try, though I’m not always successful, to look at policy based on what works and I don’t the HCR law is good policy. It’s a handout to a relatively small percentage of the poorest Americans and does not seem to include realistic cost control that would bring the price of medical care to a reasonable level.

    We have a system where the taxpayers insure the most uninsurable members of our society and everyone else is left to fend for themselves because insurance companies can suck profits from them. Would insurance companies agree to a system where they insure the uninsurable and the government takes care of those that can afford it? Of course not, because that would be stupid. Yet that’s what we do.

  72. #72 |  BillC | 

    To add to my previous post, I support medicare for all. Allow people to buy into medicare and we could allow more people to have access to medical care and maybe even make the system less of a drain on our economy.

    If doctors don’t like the rates, screw ‘em. We can import more doctors from third world nations that will be happy to work in the US for even lower medicare rates. We’re doing it for almost every other occupation so why should doctors get a free pass?

  73. #73 |  delta | 

    “… I’ll pose to those of you who read this site who are outraged by the Hudson ruling: Putting aside what’s codified Bill of Rights, which was ratified after the main body of the Constitution, do you believe the Constitution puts any restrictions on the powers of the federal government? If your answer is yes, what restrictions would those be?”

    These are good questions and should be brought up more often. I don’t think I’m the target recipient, but I’ll brain-dump anyway: I’m (a) a Leftie, but (b) distinctly *not outraged* by the Hudson ruling. I’m in favor of public-option health care, but think the insurance-mandate is very much a middle-ground-worst-of-both-worlds. I voted for Obama in support of the “more transparency” platform, and hoped at the time that the insurance-mandate plan would in fact fail or be ruled unconstitutional. Obviously, the former tactic failed grievously.

    Truthfully, I think if you really do “put aside the Bill of Rights”, then you have to switch back to the founder arguments about why the Bill of Rights was necessary in the first place. Here’s the writer of the Anti-Federalist papers (“Brutus”, likely Robert Yates, circa 1787), speaking in support of the Bill of Rights:

    “We find they have, in the ninth section of the first article declared, that the writ of habeas corpus shall not be suspended, unless in cases of rebellion – that no bill of attainder, or ex post facto law, shall be passed – that no title of nobility shall be granted by the United States, etc. If every thing which is not given is reserved, what propriety is there in these exceptions? Does this Constitution any where grant the power of suspending the habeas corpus, to make ex post facto laws, pass bills of attainder, or grant titles of nobility? It certainly does not in express terms. The only answer that can be given is, that these are implied in the general powers granted. With equal truth it may be said, that all the powers which the bills of rights guard against the abuse of, are contained or implied in the general ones granted by this Constitution.

    http://www.wepin.com/articles/afp/afp84.html

    Personally, I am a supporter of limited federal rights in the Constitution, and the need for a Bill of Rights in that regard. And that’s why one has to commit to ongoing engagement with the political process in order to secure and maintain these rights.

  74. #74 |  delta | 

    Side note: “We have two parties who have rigged the game to ensure that someone from their ranks wins every election, nearly every time.”

    Unfortunately, this a mathematical glitch with our voting system, and requires no collusion from the parties in question. Sadly, this was math that wasn’t available at the time of the U.S. founding. See: Duverger’s Law.

    http://en.wikipedia.org/wiki/Duverger%27s_law

  75. #75 |  Aaron | 

    I’m a lefty, but I disagree with both Wickard and Raich. I definitely understand the desire to do something about healthcare on a national level, though I disliked what we ended up with. I also don’t see how it’s constitutional under any reasonable reading of the Constitution. Unfortunately, the precedent is against me. We haven’t had a reasonable reading of the Constitution in quite some time.

  76. #76 |  delta | 

    And a quote from Jefferson, in an argument against judicial review (Supreme Court’s ability to declare laws unconstitutional):

    “It should be remembered, as an axiom of eternal truth in politics, that whatever power in any government is independent, is absolute also; in theory only, at first, while the spirit of the people is up, but in practice, as fast as that relaxes. Independence can be trusted nowhere but with the people in mass… It is that each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the constitution in the cases submitted to its action; and especially, where it is to act ultimately and without appeal.”

    http://www.let.rug.nl/usa/P/tj3/writings/brf/jefl257.htm

    Which (not that I entirely agree with it) does imply that all actions are constitutional, subject to the will of the people as expressed by who they elect into a given office — which reinforces the point that constant engagement with the political process is necessary to secure freedoms.

  77. #77 |  Jon Peeters | 

    As a big libertarian, my question would be:

    Would you prefer to pay for universal health care through your taxes? Why is this model so much worse in your mind?

    You are forced to pay for roads, schools, the military and other people’s health care already – through your taxes. Why is this so different.

    I’m against mandated health insurance, but so many things in life are forced upon me already, and at least this is not income-based, so the rich will pay relatively less for health care.

  78. #78 |  Herb | 

    “I try, though I’m not always successful, to look at policy based on what works and I don’t the HCR law is good policy. It’s a handout to a relatively small percentage of the poorest Americans and does not seem to include realistic cost control that would bring the price of medical care to a reasonable level.”

    I’m kind of with BillC. Also a lefty, also skeptical of the mandate, but not for commerce clause reasons. Where I diverge is BillC’s “handout to a relatively small percentage,” I’m not so sure. The mandate seems to place a burden on the precise folks who need relief. (If you can’t afford health insurance, then you probably can’t afford this tax.)

    As to whether it’s constitutional, I don’t see why not. Indeed, I think the terms of the debate are incredibly dishonest. We keep hearing “The government’s forcing me to buy insurance!” No, they’re taxing you if you don’t.

    And how is that different from, say, a hundred other taxes? The mortgage interest deduction, for instance. Hold a mortgage? Get the deduction. Own the house outright? No deduction. Does this mean the government is “forcing you” to take out a mortgage? Hardly….

  79. #79 |  J.S. | 

    Herb, the insurance mandate is not the same as buying a house with a mortgage or not. The mandate is making you buy a product/service merely for existing/being born. Its enslavement.

    The fed can do what it wants often because they’ll bribe the states to go along as well as appeal on emotional grounds. Look at debtor’s prisons, long abolished in fed law or illegal in states till the Bradley Ammendment (1986). Child support can never be rescinded once its “past due”.

  80. #80 |  cyto | 

    Jason’s comment comports well with my experience. I have been engaged in this exact debate frequently of late, due to the recent spate of supreme court events that reveal a majority on the court who do not hew to the notion of enumerated powers and constitutional supremacy. One particularly coherent progressive defended his full support for this philosohy thusly:

    “The unlimited power under the commerce clause doesn’t just give the congress the power to do bad things, it allows them to do all of the good things we want them to do. ”

    Hearing that thought process – echoed by Jason above and Kagan and Obama and Stephens and Breyer and….. Well, you just kind of lose all hope. Jason and my progressive friend and all et al place their faith in those who wield power, trusting that they will only use such power as necessary to make their lives better.

    This is a singulalry un-american way of thinking. The entire point of the american form of constitutional government is predicated on preventing this kind of unbounded authority and reliance on the judgement of individuals. They used the word “tyranny” to describe this situation. Tyranny was to be avoided at all costs. we have completely lost all memory of this critical danger.

  81. #81 |  Herb | 

    “The mandate is making you buy a product/service merely for existing/being born. Its enslavement. ”

    See, this is what I mean by “the terms of the debate are incredibly dishonest.” Whatever the mandate is, it is most certainly not “enslavement.”

    I guess such hyperbole just doesn’t impress me.

  82. #82 |  cyto | 

    #21 expresses a view that is common among my lawyer freinds. They view the power to tax as definative. They don’ really see any limit to what the money could be spent for, so there are no effective limits. They didn’t really see a problem with tht either.

    It seems that FDR has won the argument once and for all. Despite the fact that the constitution was intended to grant a limited set of powers to the government, that view is gone. It is clear that in the minds of the vast majority the government has any power it wants, and it is the government that grants to the people such rights as it deems necessary.

    It seems that Jefferson’s old debate about whether the bill of rights was a necessary addition or an obvious implication of the core constitution is moot. The problem isn’t that future generations have understood that the bill of rights is a complete list of rights – we’ve gone farther than they could imagine and deemed ourselves a government of men, not written laws.

    It is strange to me that progressives who completely distrust anyone in power in private industry have unlimited faith in government leaders to “do the right thing”. It similalry boggles the mind to hear conserVatives who completely mistrust government placing their faith in government leaders to exercise powers such as the Patriot Act. The longer I live, the more I realize that the dystopian writers of the early 20th century were not really using hyperbole to make a point so much as describing fundamental human nature. Doublethink really isn’t a problem at all for most people.

  83. #83 |  Herb | 

    “They used the word “tyranny” to describe this situation. Tyranny was to be avoided at all costs. we have completely lost all memory of this critical danger.”

    Nor is the mandate “tyranny.”

  84. #84 |  cyto | 

    #21 Radley

    This is exactly where the left (and much of the right) belief in government lies. In the modern world “constitutional” is the same thing as “good policy” and “unconstitutional” is the same as “bad policy”. Obama, Kagan, stephens, Breyer,heck even Rhenquist – all fall under this thought process.

    I suppose it isn’t that shocking that constitutional scholars would come to believe tht their judgement was beyond reproach. I guess it starts with accepted but unwritten exceptions to the rule, such as obscenity exceptions to free speech. It really isn’t that far from this to Raich. And as we’ve seen, raich to infinity is not far at all.

  85. #85 |  emerson | 

    If the mandate takes effect, it will become illegal to have no money. Not just unwise or unfortunate, but illegal. That should frighten liberals, and indeed everyone.

  86. #86 |  TomG | 

    Very late to this topic, but a long time ago I realized that the Constitution never permitted Congress to delegate its lawmaking authority. Yet we have so many agencies and departments which pass regulations that have the power of law…at what point did the Supreme Court say this was okay?

  87. #87 |  Highway | 

    Herb, how is it NOT enslavement. How is placing a burden on someone else, claiming the product of their effort, for absolutely no other reason than they exist, defined any differently? Maybe it’s an icky word, and it makes you feel bad, but that doesn’t change what it means.

    It’s also tyranny, in that it’s an arbitrary exercise of power, forced through by a ruling elite, even in the face of significant public opposition on the part of those who ostensibly elected that elite. Again, maybe that word makes you feel bad, but that doesn’t make it untrue.

    The thing I see from the people answering Radley’s question is this: No, there is no constitutional check on government power deriving from any consistent principle. The only principle that seems to be shown is “Well, that’s unconstitutional because I don’t like it / it seems wrong.” But if it didn’t ‘feel’ right, if it didn’t mesh with their ‘beliefs’, then there is no actual limit on the power of government, it’s just “Unconstitutional” because… it is.

    Basically, the only arguments made against completely unchecked government power are ‘well, I hope they don’t do it’ and ‘well, that law would be silly.’

  88. #88 |  Buddy Hinton | 

    Pretty much any healthcare reform is supported by the Commerce Clause. I personally believe that the Commerce Clause has been stretched way too far. I personally believe that antitrust law, and not socialized medicine, is the way to fix the broken healthcare system. Still, any sensible reading of the Commerce Clause is going to allow socialized medicine. There may be other individual rights that make it illegitimate for the federal government to enact socialized medicine. Even if that is true, the problem is not lack of an enumerated power. The enumerated power is the Commerce Clause. Modern medicine is interstate commerce. It is interstate commerce because of the vast sums of money involved and the volume of money modern medicine causes to flow across state borders.

    If the DoJ and courts had broken up the cartels, like they should have a long time ago, then government wouldn’t be itching for a piece of the action. Still, probably better that government get a piece of the action than that the current system is maintained. Politicians are bad, but they are still better than the people at medical insurance companies, in my experience.

    btw, I have always been treated fairly by auto insurance companies and that insurance is mandated legallly.

  89. #89 |  Herb | 

    “Herb, how is it NOT enslavement. How is placing a burden on someone else, claiming the product of their effort, for absolutely no other reason than they exist, defined any differently?”

    Ummm…that’s not the definition of slavery. How is taxing someone for not buying health insurance, a product most people would buy on their own accord with no prompting, making them a slave?

    “It’s also tyranny, in that it’s an arbitrary exercise of power, forced through by a ruling elite, even in the face of significant public opposition on the part of those who ostensibly elected that elite.”

    Actually, no it’s a specifically targeted exercise of power that has a very specific purpose (IOW, NOT arbitrary), deliberated over by a democratically elected body, and decided by a majority vote. That’s not tyranny.

    Unless you change the definition of tyranny.

    “The thing I see from the people answering Radley’s question is this: No, there is no constitutional check on government power deriving from any consistent principle.”

    You might have heard that from other people. My answer to Radley’s question is that the mandate is a tax on behavior, and that’s more than Constitutional.

    What I’m hearing from the tyranny/enslavement crowd is “If the government can make you buy health insurance, they can make you do anything!”

    Seriously? On an abstract level, yeah…okay, slippery slope arguments SEEM convincing. But consider that Obama didn’t have the power to put a public option in the bill, but putting the mandate in makes him an all-powerful tyrant who can rule your life? Absurd.

  90. #90 |  Mattocracy | 

    Herb, you are so wrong on so many levels. Majority rules is indeed tyranny in every which way. The Bill of Rights was created to keep the majority from forcing its will over the minority.

    A mandate to buy something is tyranny. It’s force. Maybe your morals and values say it’s a good thing, but you nor anyone else should be able to force your morals and values onto me or anyone else. Obama not being able to force a public option shows a lack of political power, but that doesn’t change the fact that he still had enough to force a mandate on people.

    All you’ve done is redefine tyranny. It’s force unless it’s pushing a policy you agree with. That’s remarkable childish and makes your smug reponses that much more inexcusable.

    The phrase is regulate commerce, not mandate commerce. No where in the constitution does it say “tax behavior” nor is it implied. You just lied your ass off and dismissed people’s beliefs as silly without making any solid arguements.

  91. #91 |  Cornellian | 

    The Supreme Court has recognized a couple of limits on federal power, unrelated to the Bill of Rights or intra-branch (President v Senate v SCOTUS) issues.

    First, the Federal government cannot infringe the sovereign immunity of the states in federal court. Yes, I know that arises from the 11th Amendment but only the first 10 are generally regarded as the Bill of Rights and the Supreme Court’s view of state sovereign immunity is broader than the literal text of the 11th Amendment would suggest.

    Second, the Federal government cannot commander the states to carry out federal policy. For example, the federal government cannot pass a law saying state police forces are required to enforce federal criminal law. Of course they can bribe / offer grants to states to get them to do that.

    So why is the Commerce Clause nearly limitless? Because the American people want it that way and have since FDR. Don’t think so? Run for a US Senate seat on a campaign that 80% of the federal government is unconstitutional and see what happens.

  92. #92 |  j r | 

    I do support a single-payer health care system (a la Medicare or the Canadian system) for everyone, albeit with some pretty substantial anti-corruption and anti-waste reforms.

    And I support delicious chocolate cake, albeit with pretty substantial reductions in fat and calories. When is the government going to make that happen for me?

  93. #93 |  Herb | 

    “It’s force unless it’s pushing a policy you agree with. That’s remarkable childish and makes your smug reponses that much more inexcusable.”

    Look upthread. I don’t like the mandate. Not for abstract ideological reasons (the tyranny/slavery stuff) but because it has it’s own practical problems. YOU won’t pay this tax unless you forgo health insurance. Do you plan on doing that? The people who are currently doing that are probably unemployed or poor or can’t manage their money. In other words, they can’t pay this tax. And if they can, they shouldn’t. They should buy health insurance.

    I also don’t like how the mandate further entrenches the insurance industry in the healthcare industry. They’re not natural partners and it would be nice to just buy healthcare without having to fund this third, unrelated industry too. The reforms to get us to that place would be much too radical for anyone to stomach, so okay. If we’re going to have insurance involved, let’s do it right.

    Without the mandate, we have a free rider problem. It’s a pretty significant problem, especially if you don’t like paying for other people’s healthcare.

    I guess my ultimate point is that I wish there were more and better arguments AGAINST the mandate than this nonsense slavery/tyranny/unconstitutional crap that won’t convince anyone and won’t result in anything.

  94. #94 |  fwb | 

    Even those who know diddly know that the Constitution is a white list as opposed to a black list. If you don’t know the difference, look it up.

    The sum total of ALL federal powers are explicitly written in the Constitution. Article I, Section 9 provides limits to the delegated powers in Arrticle I, Section 8 and elsewhere in the Constitution. The federal government without the Constitution is a tabula rasa, a blank slate, holding absolutely no power.

    Power/sovereignty is endowed on the individual by virtue of birth. Whether one believes in God or in evolution, the first and sovereign entity was an individual. Individuals form groups, i.e. a family, to which the various individuals transfer some part of their autonomous authority. When forming associations such as clans or simple societies, the families then transfer a portion of their limited sovereignty to the larger group. The larger group has less authority than the smaller group and has only that authority every member of the group agrees to allow. Lastly, a number of these societies acssociate together and form a government by transferring some of the societal power, which came from the clan/family, whose authority came from the individual, to the newly formed government. The government has the least of all power. Of course, that was the concept of our system but man, being corrupt, greedy, and evil by nature, turns the entire system topsy turvy in order to gain power.

    Being in control of the system of information transfer, be it media, schools, or whatever, the government has brainwashed the weak minded sheeple. And that brings us to now…

    I’ve only read +150,000 pages of books, legal articles, and case law so I only know but a small amount about the Constitution.

    RE: The commerce clause. First there is no interstate commerce clause in the Constitution. There is a clause through which the Framers sought to keep the individual states from screwing with each other which says Congress shall have the power to “regulate commerce among the several States”. Commerce is not things, it is an activity. The grants of powers are filled with things that affect commerce, such as the bankruptcy clause, the coining money clause, the power to grant copyright and patents. The fact that the Framers saw the absolute need to place these powers explicitly in the Constitution proves beyond doubt that the commerce clause does not cover “things that affect commerce” regardless of the lies of the federal government.

    Chief Justice Marshall was either an ignorati or a liar when he gave us Gibons v Ogden. He spends an inordinate amount of effort on the word “among” in the clause. Either he had no idea that you can’t have commerce “between” more than two states or he lied in order to screw us over. “between” would have only been correct for two states in the Union while “among” is grammatically correct for more than two. Ferakin duh!!

    One who reads the Constitution will also note the dearth of language concerning individuals. That is because individuals, and especially police powers, were left solely to the States and the feds were created ONLY to manage intereactions among the States and with the world, relative to commerce and defense. The feds had nothing more allowed to them. Why aren’t we still there? Because of the ignorati of the land.

    The supreme Court has lied, cheated, and stolen powers for itself and for the federal government. The people have lain there with their butts in the air waiting for the rape.

  95. #95 |  Mervis Winter | 

    Historians Discover Lost Letter from James Madison to Thomas Jefferson (click image to enlarge): http://optoons.blogspot.com/2010/02/historians-discover-lost-letter-from.html

  96. #96 |  Z | 

    Trick question: It presumes that limits on the Constitution, whatever they may be, will be honored in the breach. The Constitution basically tells federal employees and federal politicians who get off on money and power to limit their access to both. This made the whole thing a total sham: right wingers only want to limit the federal powers when it comes to helping individuals have more personal freedom (exception: guns: partial exception religion but only if practiced by Christians. No freedom of religion for those other, unAmerican people). Leftists don’t want limits at all because they are convinced that without them you’d starve to death.

  97. #97 |  fwb | 

    Adolf Hitler had it right when he said, “How fortunate for governments that the people they administer don’t think.”

  98. #98 |  eric taylor | 

    good question but the way you ask it reveals how republican you are.

    I’m a liberal, but I understand the commerce clause wasnt created for the vast federal government we have. It seems unconstitutional but . . . thanks to precedent it has become legal. We could not run our nation strictly from the constitution.

    But you see, the commerce clause is not as important as the other thing we have: a Standing Army! clearly this is MUCH worse in terms of the constitution than the way the commerce clause is abused.

    yet not a single republican would dare dismantle the military industrial complex. The military wags the dog and its wrong. We do not need the ability to project power at a moments notice to the world. All we need is a small national guard to protect us from the “not in the near future” invasion from canada and mexico.

    Where’s your question about the unconstitutional standing army?

    That’s the question republicans will never ask of themselves.

    I also think roe vs wade is not really constitutional but . . . to strike it down now, it would be bad for the nation, so . . . the supreme court will never revisit it.

    that’s how our nation works, we live with laws and precedents and the commerce clause, well if we say it works for national law, then it will.

    The supreme court would be foolish to revoke obama care because of the commerce clause, this is a matter for congress, which now that they have the republican majority should try to remove it via legislation.

  99. #99 |  Rob in CT | 

    I suppose I qualify as a liberal. I’m not outraged by the decision. I’m decidedly lukewarm about the healthcare reform law in general. I generally support a single-payer system, though, which I imagine most here would hate even more.

    Now, before attempting to answer the question posed, let’s be honest: the vast majority of people are not perfectly principled in their political beliefs. I am one such person. It’s not that I haven’t put some thought in (quite a bit, actually, and I’ve wavered back and forth on any number of issues), or that I’m stupid (well, you may disagree). I think a basic framework of principles is good, but rigidity can be bad. Theory often breaks down in contact with reality, as I see it. And, generally speaking, I find liberatarians to be extremely rigid. I’m more of a pragmatist, and I also obviously have slightly more faith (though certainly not a lot) in the ability of government to be a force for the common good. I’m glad libertarians are out there challenging the less-rigidly principled folks, but in the end I tend to disagree with you on many things.

    I do not see the Constitution as holy writ (given that I see *nothing* as holy writ, that’s not surprising). I do think that it restricts the powers of the Federal government. I also think that, over time (the document is, after all, over 200 years old), those restrictions have been eroded. The framework exists, but times change. Does this worry me? Yes. On the other hand, I don’t see State governments as somehow distinctly superior to the Feds in most areas (huge exception: foreign policy, obviously). I don’t see our modern society as particularly compatible with strict Constitutionalism. So there’s a lot of fudging.

    I believe that we should strive to protect our freedom to do as we wish, while also trying to protect others from the harmful results of that freedom of action, attempting to balance the two as best we can. Sometimes, this is simple. But inevitably you find situations where it’s not simple, because people will disagree over whether others are harmed, the extent of that harm, and whether that harm justifies restriction of the freedom of action causing the harm. Off the top of my head: second hand smoke seems like a decent example of this.

    I also care a lot about equality of opportunity. This is an ideal, of course: there will never be perfect equality of opportunity, and attempting to force it would be folly. That said, I think the government can and should be used to address egregious (ah, that’s in the eye of the beholder, I know) inequality of opportunity. If the people of this country do not believe that we’ve all got a fair shot at Life, Liberty and The Pursuit of Happiness, then I think the whole damn thing will come crashing down. It’s important to safeguard against that, and it is my belief that is exactly what FDR & friends did with the New Deal. I think some form of universal(ish) healthcare is needed for the same reason. I think a true universal single-payer system both restricts freedom (taxes one to pay for another) and enhances it (freedom to live your life w/o dreading illness or injury might bankrupt you). That gets us to the “freedom to” versus “freedom from” question. I personally think both are important. I think it’s fine to weigh “freedom to” as more important, but I think it’s a mistake to ignore or deride the value of “freedom from.”

    Hopefully that was a least somewhat coherent. :)

  100. #100 |  Jay | 

    If your answer is yes, what restrictions would those be?

    It seems to be that:
    1. The government can not restrict abortion in any manner
    2. The government can not pass laws prohibiting gays to marry.

    And soon to be coming:
    3. The government can not outlaw incest…

  101. #101 |  Mark Buehner | 

    I have a more specific question for those who disagree with Hudson: do you agree with what James Madison wrote in Federalist 45 (cited above and reproduced here)?

    “The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”

    What is your reaction to this and how does it jive with the current question? Are the Constitution’s powers few and defined?

  102. #102 |  Cynical in CA | 

    “If your answer is no, that is, that the Constitution puts no real restraints on the federal government at all, why do you suppose they bothered writing and passing one in the first place?”

    The Constitution was written to guarantee the interests of the establishment. Since it is not self-interpreting, there are no practical limits on the power of the federal government, save for public opinion. The federal government can do anything it decides as long as the risk from public opinion is sufficiently low to provoke popular revolt. It was written because it is a convenient fig leaf for federal power, that is, without it, the government would be unable to pretend it is anything other than tyrannical.

  103. #103 |  flukebucket | 

    #85

    If the mandate takes effect, it will become illegal to have no money.

    “I just spent 60 days in the jailhouse for the crime of having no dough and now here I am back out on the street for the crime of having nowhere to go”
    Sorry. When I read the statement the song just popped into my head.

    And there are no limits to what the government can or cannot do. Just read history and take a look around you. The question answers itself. #98 pretty well summed it up.

  104. #104 |  Mattocracy | 

    “I guess my ultimate point is that I wish there were more and better arguments AGAINST the mandate than this nonsense slavery/tyranny/unconstitutional crap that won’t convince anyone and won’t result in anything.”

    It’s not nonsense, its the thruth. Again, you just don’t want to admit the the obvious truth that making people do things against their will is tyranny. It’s not silly, its not nonsense, its the truth.

  105. #105 |  Travis Ormsby | 

    I’m posting here again since my original comment seems to have been deleted somehow.

    I don’t think these are serious questions that Balko is really interested in hearing answers from liberals about. As evidence of this, I think it’s extremely odd that he would explicitly exempt the Bill of Rights from a discussion of the limits of federal power.

    So the argument goes something like this:

    Outraged Libertarian: So what are the limits on federal power?

    Confused Liberal: Um, the Bill of Rights. I would have thought that was obvious.

    Outraged Libertarian: Well if you exclude the limitations on federal power, what are the limits then, huh?

    Confused Liberal:

  106. #106 |  Mattocracy | 

    The constitution was written by federalists. The anti-federalists wrote the bill of rights. All of the protections we are supposed to have from an over zealous government is in the first 10 amendments. The original document said nothing about free speech, privacy, trial by jury, etc. The original writers weren’t concerned about any of this. They just wanted a stronger central gov’t than what was provided by the Article of Confederation. If it wasn’t for Jefferson, we’d have lost all of our natural rights a long time ago.

    Keep in mind the Alien and Sedition Acts were past after the country was barely ten years old and Alexander Hamilton originally proposed a government with life time appointments with little to no oversight. A lot people never had any intentions of supporting individual rights or restraining gov’t. That battle has been raging since the end of the Revolutionary War.

  107. #107 |  MMonides | 

    I find the Right’s inability to comprehend the clear meaning of the Bill of Rights amusing. In the “it makes me cry that you guys don’t get things that most 8th grade history students do.”

  108. #108 |  MMonides | 

    I mean seriously fuckwits, you all supported torture, supported outing CIA agents, and supported serious fuckwittery with the 2000 election, but you get your panties in a bind over Mandates, an idea that conservative think tanks spent 20 years selling. HFS you are all dumber than a Palin raised on lead paint Taco Bell gorditas.

  109. #109 |  J.S. | 

    “I guess such hyperbole just doesn’t impress me.”

    Thats ok Herb, hyperbole that health insurance is just like car insurance mandates and mortgage tax breaks just doesn’t impress me.

  110. #110 |  Brandon | 

    Well, the first 4 responses from self-proclaimed liberals all avoided the actual question and accused Radley of immaturity for asking it. Fairly typical partisan “debate.”

  111. #111 |  Also, what was your problem with Dubya seizing power in ’08 and refusing to leave office? « The TrogloPundit | 

    […] what was your problem with Dubya seizing power in ’08 and refusing to leave office? Radley Balko has a question for all the “living document” liberals out there: “If your answer is no, that is, […]

  112. #112 |  Comment of the Day | The Agitator | 

    […] note, it’s always fun when a highly-linked, somewhat divisive post brings in new readers. Like this guy: I mean seriously fuckwits, you all supported torture, supported outing CIA agents, and supported […]

  113. #113 |  Irving Washington | 

    Mattocracy, that’s insane. Monroe opposed the BoR initially because he thought it was redundant and might lead to the argument that those were the only rights protected. The original drafters thought of the Constitution as defining the limit of federal power beyond which it simply didn’t have the People’s consent to act.

  114. #114 |  alkali | 

    I think the question is misconceived.

    The Federalists who supported the Constitution without a Bill of Rights (e.g., Hamilton) contended that the federal government could not legitimately do things which violated people’s natural rights, and so there was no need for the Bill of Rights. Supporters of the Constitution who wanted a Bill of Rights (e.g., Jefferson) contended that limitations on the power of the federal government should be set forth explicitly to the extent possible.

    So if the question was, “Absent the Bill of Rights, could Congress ban pamphlets advocating political position X from being shipped in interstate commerce,” the answer for Hamilton was something like “No, because a law that infringes freedom of the press is ipso facto illegitimate,” and not “No, because that wouldn’t be a regulation of interstate commerce.” The answer for Jefferson would be something like, “Congress might try, so that’s why we need the Bill of Rights.”

  115. #115 |  Steve Verdon | 

    Francis,

    To Steve Verdon: do you think that analogizing your political opponents to fascists is in any way useful? And by the way, have you yet stopped beating your wife?

    If you think that way, it pretty much makes you a fascist–i.e. I’m pointing out that those who think that way are in agreement with at least one significant aspect of fascist thinking. That is a quite a bit different than calling all my opponents fascists. For example, below I disagree a bit with Mattocracy. Will I call him a fascist? Not until after he calls me an ignorant slut.

    Mattocracy,

    I think a better question is how people define freedom. As someone stated above, some people see freedom as freedom from something, some see it as freedom to do something. Free from high rent, high medical costs, tainted foods, risky behaviors. Freedom from these things are worth any price, even stealing from your neighbor.

    We have a word for that, its called parentalism and it isn’t freedom. Its being taken care of by another. It isn’t really a type of freedom when you get down to it. I agree with you some people think its freedom and some like it so much they are fine surrendering ever more of their liberties to attain these “freedoms”.

  116. #116 |  J. P. | 

    Agitator, I think I see where you’re pointed with your question. I usually phrase it as whether one’s paradigm depends on the real existence of a single big pie, such that participation in the communal allocation of slices is one’s natural activity and orientation.

    Sorry for the wordiness, I’m too lazy to edit, but is that similar to your intent?

  117. #117 |  Mattocracy | 

    #113 | Irving Washington,

    Many of the original framers might have said that as you stated above, but they were lying. Just like politicians do now. They say one thing, then do the other. Hamilton had no intentions of limited government and protecting rights. Read about what he did during the Quasi War. As I said, these are the same people who passed the Alien and Sedition Acts.

  118. #118 |  SJE | 

    For those who cite to Jefferson, I note that while he was clearly brilliant and great with the lofty rhetoric about men’s rights etc, he wasn’t exactly great when it came to implementing those rights. Not least of which was allowing almost all of his slaves to be sold after his death, unlike G. Washington, who freed all of his slaves.

  119. #119 |  greg | 

    Based on, well….lots of different governments throughout history and around the world (specifically great britain), and their “tyrannical” bent, it seems that one over-arching theme when forming a government here, was the idea to restrain the federal government. You can see this by how often the subject was addressed in the federalist papers, for example.

    I think Steve nailed it. Some people place a very high value on freedom / liberty. For others, things like security and consistency is more important. We all approach the question of “constitutionality” from this frame of mind.

    For those on the liberty side of the debate, we pretend as though a piece of paper would actually be effective at restraining men with guns. While on the other side people are able to rationalize away any conflicts because of their pre-conceived idea of what is important. (yeah, we both do it…..if I were living in a country where our governing document explicitly gave the government vast powers over every aspect of life, I’d do my damndest to argue around it, as I find being free the ultimate goal).

    Wow, that all sounds so cynical when I re-read it.

  120. #120 |  Herb | 

    “Again, you just don’t want to admit the the obvious truth that making people do things against their will is tyranny. ”

    So you’re saying you don’t want to buy health insurance? See, I thought you found the mandate onerous because of abstract ideological reasons, but as it turns out…you just want to be a free-rider. Good to know.

  121. #121 |  Desiderius | 

    My (related) question for our lefty commenters:

    At what point do you estimate that the doctrine of enumerated powers (for the government) was abrogated in favor of the doctrine of enumerated rights (for the people)? Your comments here nearly unanimously show that you’ve adopted the latter.

    Do you (still? given the evidence of the intervening years?) consider such a change progress?

  122. #122 |  Desiderius | 

    Travis,

    “Outraged Libertarian: So what are the limits on federal power?

    Confused Liberal: Um, the Bill of Rights. I would have thought that was obvious.”

    It is an interesting feature of our present time that ignorance is so often mistaken for obviousness. Have all times been so?

    You’re confused because you evidently weren’t paying attention in civics class when the doctrine of enumerated powers was discussed. I wonder how many lefties would now support the abrogation of that doctrine if they were actually aware of the issues involved?

  123. #123 |  red | 

    …. the Founders decided to draft a Constitution in the first place, or place any special magic with that document, which has had to suffer several amendments to guarantee even basic freedoms to huge swaths of our population. …

    This is a feature not a bug. The amendment process was anticipated as necessary and accomplished the expansion of liberty. It is historical revisionism to not recognize that the entire world accepted slavery when the Constitution was adopted.

    The Constitution prevents lefties from running roughshod over the rest of us, for example controlling the internet, banning new sources that they disagree with, dismantling foundational societal institutions like marriage.

  124. #124 |  Dave Johnson | 

    I don’t think you accurately describe the President health care mandate as “lefty.” “Lefties” wanted Medicare-For-All. They hate that the government was bribed by big corporations to require us to purchase the product of those big corporations.

    The mandate is Romneycare.

  125. #125 |  Desiderius | 

    red,

    Moreso, though, given the history you cite, it prevents non-lefties from doing even worse things, and might better do so were more, including the left, inclined to (re)adopt an enumerated powers reading of it.

    There was a time when those on the left did so, after all.

  126. #126 |  nicrivera | 

    Herb,

    What you posted in #120 in response to Mattocracy is a complete non-sequitor.

    In the comment that you quoted, Mattocracy made absolutely no mention whatsoever of whether he did or did not want to buy health insurance. He was simply making a general point that “making people do things against their will is tyranny.

    Personally, I would rephrase Mattocracy’s comment to say “Making people do things against their will is coercion, and coercion is antithetical to freedom.”

    But regardless of whether Mattocracy’s comment is 100% accurate or not, it doesn’t change the fact that your simply twisting his words around–attributing to him words that he neither said nor implied.

  127. #127 |  t1 | 

    “All of which is why reelection rates usually top 95 percent, even though approval ratings for Congress rarely rise above 30. So Congress doesn’t really have to answer to the voters. And it really doesn’t have to answer to the Constitution.”

    ————

    You seem to suggest that the unelected lifetime appointments on the judiciary are more responsive to the public than Congress

  128. #128 |  Herb | 

    “Personally, I would rephrase Mattocracy’s comment to say “Making people do things against their will is coercion, and coercion is antithetical to freedom.””

    “your simply twisting his words around–attributing to him words that he neither said nor implied.”

    Am I?

    If the healthcare mandate is coercing/forcing people to buy health insurance against their will, then the implication is they don’t want to buy health insurance. After all, they’re being forced –against their will– to buy health insurance. Right?

    And who are these principled shirkers of health insurance? Are they all rich enough to pay out of pocket for their own health care? Will they pledge to never go on Medicare/Medicaid, sticking the taxpayers with a lifetime of health mismanagement? They won’t declare bankruptcy if the bills are too big, sticking a hospital or doctor with a big loss?

    In the absence of an alternative that answers some of these questions, the “You can’t make me buy health insurance” crowd starts to sound like Harry telling Lloyd that you can’t triple stamp a double stamp.

  129. #129 |  Terrorific | 

    Herb (#128)

    I’m required in Japan to buy health insurance, and refuse to. When I get sick, I pay in cash, and it’s much cheaper in the end.

    Are you willing to come and personally put me in jail for not buying health insurance?

    This is the main question. Unless you’re willing to incarcerate people for not buying health insurance, you certainly can’t be for a mandate.

  130. #130 |  Philip Wilson | 

    I’m puzzled why I should care about the Tenth Amendment at all, beyond at best a sort of urgent need to repeal the stupid thing.

    Remember, the Tenth Amendment is not part of the basic structure of the Constitution. It’s an amendment, an add-on, a later modification. In fact, it could be argued that the Tenth is a vague attempt to undermine the Constitution proper.

    But in any case, the Tenth Amendment was proposed as a way to sell the Constitution to the east coast landowners who were in power under the previous government, the Articles of Confederation. No one from west of the Appalachians voted for it; no one who worked for a living; no one who had grown up in the USA as a nation. It was a sop to slavers & worse to let them think that things wouldn’t get too radical.

    Now, one could condemn the entire Bill of Rights, the entire Constitution before amendments, as a product of the same privileged class, & be correct. The difference is that some of those serve some rational purpose. The Tenth, on the other hand, is utterly a product of its particular era & the political concerns of that era. It doesn’t add one useful thing to the function of a modern US government. In fact, by encouraging split sovereignty, it would if taken seriously turn governing into an irritating game of wars over which government has a prerogative–undermining the ability to write laws even when those laws are useful or even vitally necessary.

    No, it’s time for the Tenth Amendment to go.

  131. #131 |  Herb | 

    “I’m required in Japan to buy health insurance, and refuse to. When I get sick, I pay in cash, and it’s much cheaper in the end. ”

    Awesome for Japan. Paying out of pocket in the US is unlikely to be “much cheaper in the end.”

    “Are you willing to come and personally put me in jail for not buying health insurance?”

    Even in the worst case scenario, no one’s going to jail for not buying health insurance. You’ll be assessed a tax and if you don’t pay the tax, then there may be penalties but even then, jail time is unlikely.

    “you certainly can’t be for a mandate.”

    I’m not for the mandate. I’m just against all these weak arguments. I’m also against paying for other people’s healthcare and I don’t understand why telling the uninsured (estimated to be around 50 million people) they have to get health insurance is a bigger abridgment of freedom than telling the 250 million people who HAVE insurance that they have to pay for the 50 million who don’t. Anyone have an answer to that one?

  132. #132 |  freedomfan | 

    Herb:

    “Again, you just don’t want to admit the the obvious truth that making people do things against their will is tyranny.”
    So you’re saying you don’t want to buy health insurance? See, I thought you found the mandate onerous because of abstract ideological reasons, but as it turns out…you just want to be a free-rider. Good to know.

    Others point out that what Mattocracy has said doesn’t imply he doesn’t want to buy health insurance. You respond:

    If the healthcare mandate is coercing/forcing people to buy health insurance against their will, then the implication is they don’t want to buy health insurance. After all, they’re being forced –against their will– to buy health insurance. Right?

    Wrong. A law forcing you to do something you would do anyway can still be a bad law and be worth opposing. For example: I like pizza and I buy pizza, but I am opposed to any law forcing people to buy pizza. Do you see how the fact that I oppose a policy of forcing people to buy pizza doesn’t in any way imply that I don’t buy pizza myself?

    (And, yes, I understand that the analogy could be improved. But, the underlying point remains clear: One can be opposed to a policy of general coercion, even when one otherwise willingly does the thing being coerced.)

  133. #133 |  M. Simon | 

    And I don’t know how you meaningfully grant the power to regulate without also granting the power to ban.

    See the Tim Leary (yeah that one) case on pot possession that went to the SC.

    I believe it made that very distinction. Congress “got around it” by dealing with drugs as a medical issue. The Controlled Substances Act.

  134. #134 |  M. Simon | 

    Will they pledge to never go on Medicare/Medicaid, sticking the taxpayers with a lifetime of health mismanagement?

    So the real problem is not insurance. It is government meddling in the Health Care market. Forcing some people to pay for other people’s problems.

    I’m 66 and in good health. When my time comes I’m willing to go without the aid of government services. But the government won’t let me. They insist on providing me services I’m not interested in and charging the earners for my privilege. Pay up suckers. You owe me.

    Feeling better now are we? I hope so.

  135. #135 |  M. Simon | 

    I do not see the Constitution as holy writ

    I hope you take the same attitude about laws against robbery. Once they cease to be holy writ in your State give me your address. I’m sure it is a State I have always wanted to visit. Your neighborhood in particular.

  136. #136 |  freedomfan | 

    Herb:

    I’m also against paying for other people’s healthcare and I don’t understand why telling the uninsured (estimated to be around 50 million people) they have to get health insurance is a bigger abridgment of freedom than telling the 250 million people who HAVE insurance that they have to pay for the 50 million who don’t. Anyone have an answer to that one?

    Sure, end any and all government regulations that say you have to pay for other people’s health care and any regulations that remove a health care provider’s choice as to whether to provide that health care. Then people will have to pay for their own health care (either directly or through insurance) or rely on the willing charity of others to provide it for them or to pay for it for them.

    (BTW, as a side note, a system forcing every individual to pay for health insurance won’t solve the problem because there will still be some people who can’t afford it and the rest of us will still be stuck paying for them. Ultimately, a better solution is one in which health care is more generally affordable. Dumping the parts of the current system the government distorts the market with tax policy to favor third-party payer insurance would be a great start. Cost containment is going to be a problem for any system in which the cost of a service is hidden from the people receiving it.)

  137. #137 |  M. Simon | 

    I do not see the Constitution as holy writ

    i.e. Laws have no meaning.

  138. #138 |  M. Simon | 

    Ultimately, a better solution is one in which health care is more generally affordable.

    Ultimately you do that by restricting available treatments. i.e. Death Panels, etc. Not to worry they are in the works.

  139. #139 |  Neddy | 

    speaking as a certified wingnut I would like to express the usual disdain for “you libs”. While wishing you a Merry Christmas which you don’t believe in because you are out to destroy traditional white societal values.

    and to let you in on a little secret: we don’t really like Sarah Palin, we’re just trying to pump up her value so we can sell her on Ebay.

  140. #140 |  M. Simon | 

    Where’s your question about the unconstitutional standing army?

    1. Where exactly does the Constitution prohibit a standing Army?

    All I can find is that funding must be on a biannual basis.

    http://www.fff.org/freedom/fd0612d.asp

    2. Given that nukes could be delivered in 30 minutes or so with current technology is it wise to develop retaliatory capacity after the nukes have landed?

    3. Are we currently at war?

    4. Given that the US is currently the guarantor of peace in so many areas is it wise to pull back from global commitments? In America we managed to avoid the question in the aftermath of WW1. That got us WW2. Is the current military as constituted and used cheaper than a world war or more expensive?

    5. In order to avoid a Barbary War we paid tribute to the jihadis of the day. Should we revive the practice?

  141. #141 |  Herb | 

    “One can be opposed to a policy of general coercion, even when one otherwise willingly does the thing being coerced.”

    Sure, but then again “doing something willingly” and “being coerced” are mutually exclusive terms. If you do something willingly, you are –by definition– not being coerced.

    The uninsured WILL be coerced into buying insurance, of course, and I shed a tear for them, but do they cry when I’m THEIR hospital bills are priced into MY insurance premium?

    “When my time comes I’m willing to go without the aid of government services. But the government won’t let me.”

    Well that’s true. But then again, we live in an industrialized country in the 21st Century. Call 9-11, and the paramedics will come. If you need medical attention, they will give it to you. Go to the emergency room, you will be treated. I think this is true, even down in Galt’s Gulch.

    Since we’re not going the “Denial of service” route (and won’t be as long as we’re a modern country), we then have to figure out a way to pay for it.

    Which brings me to Freedomfan:

    “Ultimately, a better solution is one in which health care is more generally affordable. Dumping the parts of the current system the government distorts the market with tax policy to favor third-party payer insurance would be a great start.”

    I totally agree. But if after preserving the insurance-based system, we’re hearing this much outcry over the mandate, imagine the outcry you’d hear if Uncle Sam tried to get all up in the bizness of insurance companies.

  142. #142 |  Chris | 

    Herb

    In general I see your points. But your arguments are just as weak. Why should anybody have to pay for another person’s insurance? But you fail to answer why the alternative is that we all flip the bill. You have to make the case to me as to why I have to buy insurance because I’ll never use it. Others will and that’s what I’ll be paying for. I need a lot of good reason to buy a product/service at a loss to me at a time when I cannot afford it, and even if I could would still not be entirely wise for me to get. Our hospitals can’t turn away patients but do they need to treat them in the most expensive manner possible?

    I dislike the fact that I have to make an argument (a strong one just for you) as to why I shouldn’t have to give you my money. You should be making a stronger argument to me about why you need me to give it to you. preferably one that benefits both of us and not just one group.

  143. #143 |  freedomfan | 

    Herb,

    “One can be opposed to a policy of general coercion, even when one otherwise willingly does the thing being coerced.”

    Sure, but then again “doing something willingly” and “being coerced” are mutually exclusive terms. If you do something willingly, you are –by definition– not being coerced.

    Sheesh! I’ll try one more time. One can be opposed to THE POLICY of coercion, whether or not one would personally do the coerced thing willingly or not. To restate: It does not matter that I would buy insurance for myself for me to be opposed to a policy of forcing everyone to buy insurance. The policy requires coercion, regardless of whether or not a given individual would have bought insurance on his own. I’m not sure why it isn’t clear that someone can be opposed to a policy that won’t necessarily affect him directly.

    Meanwhile, I am not sure if we are taking the same tack on affordability or not. My approach is to get the government out of both the health care business and the health insurance business, in terms of regulation and in terms of tax policy that distorts in favor of employers providing $X in health insurance instead of that same $X in extra salary. What insurance people buy (either on their own or through a group plan, employer-sponsored or not) should be up to them. That wouldn’t eliminate the need for insurance companies, though a lot more people would probably buy catastrophic insurance and pay on a fee-for-service basis for more routine health care services. And, that would be a good thing, in terms of putting downward pressure on the cost of health care services.

  144. #144 |  JThompson | 

    As a lefty (libertarian leaning liberal), I find the mandate to be purest bullshit. My argument has been more or less the same as yours: If the government can force individual citizens to do business with a private corporation for one thing, there’s nothing preventing them from doing it for another. Next time a corporation is too big to fail I guess we’re going to have a “Buy X Shit You Don’t Need for the Good of America Act”, while the corporation jacks its prices accordingly: Just like the insurance industry is doing right now. Lefties didn’t do this, Third Way wankers did while lefties had fits.

    @Herb: The government’s unwillingness to get up in the business of insurance companies while forcing us to deal with them is part of the problem. The mandate would be softened somewhat if there were price controls put in place with it, or even a real public option that was run as a minimal profit organization. (Which would allow the private companies to continue to compete while keeping their prices down.) As it stands they’ve declared they want a free market solution while creating anything but. You can either have a free market solution or you can have a regulated, controlled system, but this bastard hybrid they’ve created is worse than either. So now it’s “Buy from these guys or else.” while these guys can charge you whatever they damned well please. For a lot of people it’s going to cost them what little health care they had, since they’re going to either be paying for insurance they can’t afford or fines they can’t afford. Either will be cutting into money they could have actually seen a doctor with. So it accomplishes the exact opposite of what it’s supposed to.

  145. #145 |  Herb | 

    “Why should anybody have to pay for another person’s insurance? …..You have to make the case to me as to why I have to buy insurance because I’ll never use it.”

    Chris, unless you are rich enough to pay out of pocket for all your healthcare needs or you’re immortal, you’ll be using health insurance at some point during your life. Count on it.

    Also, where’d you get this idea that the mandate says you have to pay for another person’s insurance? The point of the mandate is to ensure that other person is paying for their own.

    “I need a lot of good reason to buy a product/service at a loss to me at a time when I cannot afford it, and even if I could would still not be entirely wise for me to get.”

    When is it not wise to buy health insurance? As for the people unable to afford insurance, yes, I sympathize with them. They will be paying this tax, making insurance even more unaffordable.

    But the thing is….I’m not hearing a bunch of poor people here saying, “I can’t afford insurance, so why are you making me pay a tax???” I’m not even hearing people say, “I’m paying out of pocket for all my healthcare needs, so I don’t need this policy you’re trying to force down my neck.”

    No, I’m hearing people who already have insurance saying “You can’t force me to do what I’ve already freely chosen to do, nanny state!” Which, I’m sorry, is just ridiculous.

    As for this:
    “You should be making a stronger argument to me about why you need me to give it to you.”

    Hmm, not sure I get this. When I pay my premium, I’m not redirecting YOUR money anywhere. But when you show up at the hospital with no insurance….you’re redirecting MY money towards yourself. Right?

    I think what you want is an argument why insurance is a worthy product, and well….ask an insurance salesman.

    “One can be opposed to THE POLICY of coercion, whether or not one would personally do the coerced thing willingly or not. ”

    Why? Because of the word “coercion?” Sorry, man, but I shed no tears when a free rider is “coerced” into paying the freight.

    “My approach is to get the government out of both the health care business and the health insurance business, in terms of regulation and in terms of tax policy….”

    Prepare to be disappointed….

    “What insurance people buy (either on their own or through a group plan, employer-sponsored or not) should be up to them.”

    It should, you’re right. But again, what do you plan on doing with the free riders? Deny them services? That’s what you’d do with the guy who tries to get on the bus without a ticket. Kick him off. A hospital is not going to do that to an uninsured patient.

    So what else do you suggest? A mandate to deny services?

  146. #146 |  Herb | 

    Kudos to JThompson…

    “You can either have a free market solution or you can have a regulated, controlled system, but this bastard hybrid they’ve created is worse than either.”

    Yes, instead of using buzzwords like tyranny and socialism and coercion, here we have a substantive critique.

    Unfortunately, I’d much prefer the insurance mandate to price controls (which won’t work and come with their own problems) or trying to eliminate profit from the healthcare system.

    How come the libertarians don’t?

  147. #147 |  BoogaFrito | 

    Even in the worst case scenario, no one’s going to jail for not buying health insurance. You’ll be assessed a tax and if you don’t pay the tax, then there may be penalties but even then, jail time is unlikely.

    Tell that to Wesley Snipes.

  148. #148 |  Herb | 

    Ha!

    I’m not sure what the movie star going to jail for failing to file his tax returns tells us about what will happen to people who fail to buy health insurance….

    But my guess is nothing.

  149. #149 |  Challeron | 

    Herb@143:

    I’m not even hearing people say, “I’m paying out of pocket for all my healthcare needs, so I don’t need this policy you’re trying to force down my neck.”

    You’re hearing it from me: I’ve been unemployed for more than two years (and thus have received no extended UI benefits), and in losing my job I lost my health insurance; but I couldn’t buy an individual health insurance policy from anyone — even though I could afford it — because I have a “pre-existing condition” (I’m taking preventative treatment for rheumatoid arthritis, which runs in my family). I therefore had to learn to Suck It Up, and take better care of my own damned Health, and pay for my Ongoing Treatment in Cash, from the same Doctor I’d been seeing all along: He put me on cheaper medications, minimized the necessary office appointments, and actually charges me less money than he used to bill the insurance company (maybe he’s just being a Nice Guy, but I suspect it’s because not having to deal with a Third-Party Insurer in my case has lowered his paperwork costs in dealing with me).

    The most important benefit to me, something that you don’t seem to acknowledge, is that my Lack of Insurance has forced me to take better care of myself; and this is the very argument against Obamacare, which itself, after all, is little more than an extension of Medicaid to everyone: How about if people start taking responsibility for their OWN damned selves, instead of us hearing “Obama gonna buy my gas, and pay my mortgage” all the damned time?

  150. #150 |  Fargus | 

    If having people do stuff against their will is tyranny, then any and all government is tyranny. Period. And that’s pure bullshit.

  151. #151 |  Njorl | 

    The question here, is essentially the equivalent to, “If you went outside in the middle of winter stark naked, do liberals think you wouldn’t get cold?”

    No, of course you’d get cold, that’s why you wear clothes.

    The Constitution without the Bill of Rights (and subsequent amendments) is a prescription for a specific type of tyranny. It simply defines the structure that tyranny would take. The authors of the original document were naive enough to think that good men like them would not be tyrants. Fortunately, wiser heads, (more cynical and less impressed with their fellows) pevailed.

  152. #152 |  Rob in CT | 

    Not seeing something as “holy writ” != “laws have no meaning.” That’s an exaggeration of my position. But I’m sure it felt good to type, along with the internet tough-guy stuff about burglary.

    Some more thoughts on Federalism and Healthcare, take ‘em or leave ‘em:

    Perhaps if the “states rights” argument hadn’t been so badly misused in the past (for example: to protect the right to enslave millions of people, demand the expansion of that system and, later, to set up & protect “Jim Crow”), the concept would have more appeal now. Historically, the Federal government has been, at times, a positive force for freedom, as against State governments that were oppressive of their citizens (or non-citizen residents). That history matters, if one is to try and understand how we got where we are, here in 2010.

    I do not think that lack of health insurance rises to the level of slavery or Jim Crow and therefore, as I said before, am not “outraged” at the possibility that the HCR bill ends up being struck down as unconstitutional. I don’t like the law much anyway.

    Regarding rationing, I think it’s important to remember that any healthcare system will restrict treatment. A pure free-market system would ration by personal wealth. Got the money? You get treated. No money? No treatment. Of course we don’t have that, as we have a mish-mash of regulated private insurance and governmental programs. Not all care is denied to the uninsured/destitute (ER care isn’t, and then the costs are passed on to the rest of us anyway). So yeah, the status quo is crap (not that I think libertarians would disagree w/that!).

    A pure socialist system would treat everyone the same, but would ration via some sort of cost/benifit analysis of treatment options. Or, if you prefer, “death panels.” It is my understanding that several countries have hybrid systems that provide a certain level of care for all but allow those with the money to buy supplemental coverage. That seems like a reasonable compromise to me. It’s certainly better than our status quo. It’s also, no doubt, unconstitutional to an originalist.

  153. #153 |  Alex | 

    151-
    “The authors of the original document were naive enough to think that good men like them would not be tyrants.”
    You have no idea what you’re talking about.

  154. #154 |  Njorl | 

    Alex, I do. I should have said that they didn’t believe good men like them would not need to have prohibitions against tyranny so explicitly spelled out. Those fools who thought the Bill of Rights was not necessary were, indeed, extremely naive.

  155. #155 |  Graham Shevlin | 

    Radley, please cut out this lazy, peurile habit you and other libertarians appear to have of beginning postings with an ad hominem like “lefties”. It reveals that you are (a) stuck in the world framed for you by the media where there is a left-right dichotomy, and (b) you’re being intellectually lazy and would rather talk in slogans.

  156. #156 |  Cramer | 

    Maybe we should put it this way:
    Conservative and/or Republican President X has read and/or received testimony that communities that issue concealed weapons permits have demonstrably lower rates of violent crime (never mind if that is a universally accepted view or not; the president has logged plenty of evidence to support his point of view and uses that to dismiss those who oppose that view).
    Considering this trend means communities are inherently safer, and that it is not a stretch to assume that less violent crime leads to less need for emergency and medical services, then the right to carry a concealed weapon also saves Americans considerable money in public services and yes, health care.
    So, conservative/Republican President X pushes for a federal mandate that every American must purchase a weapon and must have said weapon on their person at all times – and he uses the commerce clause to justify this.
    Is that different than mandating people to buy insurance? Before anyone even starts, yes I know it’s a ridiculous scenario – but 50 years ago the idea that the government would force you to buy insurance was ridiculous as well.

  157. #157 |  Steve Verdon | 

    Herb,

    Even if I was going to do ‘X’ the fact the government also demands that I do on pain of suffering does not remove the coercive element to the nature of government. And it isn’t that people are being “principled shirkers” it is that after looking at the situation…the complete situation they might decide not to buy health care but instead prefer to spend that money in other ways. That they can free ride and makes that decision much easier isn’t a clarion call for more force and coercion but for a rethink of the current policies that allow for the free riding in the first place.

    Our health care system needs a serious overhaul/reform, but the current law will not accomplish that, if anything it will make the situation worse, and allow for even more government control of our lives.

    Hmm, not sure I get this. When I pay my premium, I’m not redirecting YOUR money anywhere. But when you show up at the hospital with no insurance….you’re redirecting MY money towards yourself. Right?

    Insurance in a way works like a subsidy. Basically a group of people (a large group) will be able to determine who will get sick and how much it will cost (there is a fair amount of heavy duty math here with things like the law of large numbers, etc.). Now you take those costs for that group and divide it by the number of people in group and that is your premium. Coverage is typically less than 100% due to moral hazard. So in effect, insurance is where the healthy pay for the care of the sick. A priori since nobody knows who is going to be sick it works to everybody’s best interest.

    That is, the market version of insurance. Problem is that if you are a pre-existing condition you are no longer able to participate in that market because of the certainty engendered by the pre-existing condition. You can’t get insurance because you are already sick. Now, we could subsidize the care of these people. Problem is we don’t just subsidize them…we subsidize healthy elderly people, health young people, and so forth. And the government’s objective function is different than that of a profit seeking firm. A profit seeking firm in maximizing profits also minimizes costs. Government on the other hand has no such constraints.

    I know, I know you’ll claim that Medicare is cheaper than private health insurance in terms of administrative costs. However, you have to account for the fact that Medicare shifts some of its costs to other government agencies. Also, private health care firms spend considerable of money looking for people with pre-existing conditions. Medicare does not. While that may sound bad, for people currently getting health care that has a benefit of reducing their premiums. Then there is also fraud detection. I’d be curious to see which spends more and which is more effective. In other words, taking the basic data and constructing simple statistics may give a misleading picture.

  158. #158 |  M. Simon | 

    A pure socialist system would treat everyone the same

    Such a system has never been observed in the wild. Look up “nomenklatura” for more details.

    My point of course is that laws have meaning. Once you start abrogating meaning you are not far from abrogating law.

    Nice try though.

  159. #159 |  greg | 

    Herb,
    I’m starting to see your point. Let me make the analogy to the GM bailout. The ultimate goal was to get money into GM, from the government. This could be done by taxing the population and giving GM the money, or it could be done by simply saying to the population you have to spend that same money on a vehicle. there is nothing inherantly different betwen those two scenarios. In both cases, I’m out my cash and GM gets a better looking bottom line.

    The correct answer is they are both unconstitutional, but Herb is saying that since we’re already past the point where giving money directly to private industry is in question, it shouldn’t matter how the government OBTAINS the money. And he’s right, whether its called a tax, fine, penalty, or mandate doens’t matter….what matters is what the money is being used for after words.

    As for this…
    “Even in the worst case scenario, no one’s going to jail for not buying health insurance. You’ll be assessed a tax and if you don’t pay the tax, then there may be penalties but even then, jail time is unlikely”

    You can’t be serious. What, the goverment is just going to tell me to forget about it when I tell them I’m not paying. Trust me, people will end up in jail over this…..they’ve ended up there for much smaller infractions in the past.

  160. #160 |  Travis Ormsby | 

    Desiderius says:

    “You’re confused because you evidently weren’t paying attention in civics class when the doctrine of enumerated powers was discussed. I wonder how many lefties would now support the abrogation of that doctrine if they were actually aware of the issues involved?”

    Well, in the AP US Government and Politics class THAT I TEACH, the lesson goes something like this:

    Article 1 section 8 lays out all the powers of the Congress. Pay close attention to the commerce clause and the necessary and proper clause. In a society where basically all human activity is considered economic, there is precious little that is outside of the scope of these two clauses when taken together.

    So while section 8 can be considered a “white list” that constrains federal federal power as opposed to the “black list” in section 10 that constrains state power, it’s a white list on which essentially all human endeavors have been placed, so it does a pretty poor job of actually constraining federal power.

    So why don’t we have a totalitarian federal government? Well partly because of some “black list” things in section 9, but mostly because of the the Bill of Rights, and the 14th amendment.

  161. #161 |  Nick T. | 

    So it seems like the answer to Radley’s question, as I would have guessed, is that according to progressives, there are no limits on the legislative powers of Congress other than the Bill of Rights, and things that are super explicit like “Bills of Attainder.”

    It’s a good question though, and it is important for people who agree with the mandate’s Constitutionality (if not its policy benefits) to recognize thay have ceded essentially the entirety of Article I Section 8 as an empty formality, a mere guideline.

    This is all fine, and there is nothng wrong with this view at all but people who feel that way should come to grips with it and own up to it, and be prepared to apply this view cosnistently to other issues. This conversation is a good one and shows people can have multiple reasonable interpretations of the Constitution, but I always feel people – individuals that is – should strive to have their own consistent and coherent interpretation of the Document and its different parts. Thats the foundation for a better system of governance and dialogue.

  162. #162 |  Radley Balko | 

    Radley, please cut out this lazy, peurile habit you and other libertarians appear to have of beginning postings with an ad hominem like “lefties”.

    I was directing a question specifically at people who hold leftist political views. Dozens of people holding those views responded. Seems pretty clear that I accurately directed my question at its intended target, and that the intended target understood it as such. What word would you prefer? Do you also think it’s lazy and peurile [sic] to direct a question at “conservatives”?

    Also, I think you need to look up the definition of ad hominem.

  163. #163 |  RagnarD | 

    ….please cut out this lazy, peurile habit you and other libertarians appear to have of beginning postings with an ad hominem like “lefties”.

    Okay, how about this? Fascists, here is the question for you, the real one…..

    Do you understand that the 1st & 2nd Amendments are immutable? The 2nd ensures the 1st? You can try and force this radical righty to do lots of things but he protects his own rights with the 2nd. So, ….. sod off.

  164. #164 |  delta | 

    One other thing I’ll drop in here (quote from AP article today):

    As a presidential candidate, Obama opposed the individual requirement as too costly for the average household. He embraced it after it became the only approach that could pass both the House and Senate. The legislation also provides tax credits to make premiums more affordable.”

    When I voted for Obama, part of what I was voting for was not having a private health insurance mandate. It was actually about the only issue where I felt he had an advantage over Clinton. So — definitely not outraged by the Hudson ruling.

  165. #165 |  delta | 

    Source: http://news.yahoo.com/s/ap/us_health_care_plan_b

  166. #166 |  delta | 

    #123 | red: “It is historical revisionism to not recognize that the entire world accepted slavery when the Constitution was adopted.”

    What the fuck? No, not remotely.

    “In Western Europe slavery largely disappeared by the later Middle Ages.[67] The trade of slaves in England was made illegal in 1102.[68] Thralldom in Scandinavia was finally abolished in the mid-14th century.[69] Slavery persisted longer in Eastern Europe. Slavery in Poland was forbidden in the 15th century; in Lithuania, slavery was formally abolished in 1588; they were replaced by the second serfdom. In Kievan Rus and Muscovy, the slaves were usually classified as kholops. Slavery remained a major institution in Russia until 1723, when the Peter the Great converted the household slaves into house serfs. Russian agricultural slaves were formally converted into serfs earlier in 1679.[70]…”

    Source and footnotes here: http://en.wikipedia.org/wiki/Slavery

  167. #167 |  freedomfan | 

    Travis Ormsby:

    Well, in the AP US Government and Politics class THAT I TEACH, the lesson goes something like this:

    Article 1 section 8 lays out all the powers of the Congress. Pay close attention to the commerce clause and the necessary and proper clause. In a society where basically all human activity is considered economic, there is precious little that is outside of the scope of these two clauses when taken together.

    So, do you teach what the words in the clause meant at the time they were ratified? E.g., that “to regulate” held the connotation of “to make regular”, more akin to what might be phrased as “to eliminate irregularity” in more modern terms? I wonder how many students look at that clause and assume that the modern notion of regulation as deciding and enforcing rules about any aspect of an activity was what the people who ratified the document had in mind. In the context of the debates at the time, the interstate commerce clause was pretty clearly intended to ensure that states didn’t develop a mishmash of protectionist rules and tariffs to benefit their industries. That goal was furthered in article one section nine, subsection five.

    Not to mention that the clause allows legislation regarding actual interstate commerce, not regarding every activity that has any conceivable impact on commerce, which, as you note, would be all activities. This is why Radley’s question is a probing one: Why bother writing a constitution delegating specific powers to the federal government if the intent is to grant unlimited powers? That would be a good question to pose to students when discussing the commerce clause. I think it’s beyond dispute that the Constitution never would have been ratified if the states thought it allowed federal government the broad authority later read into it in such cases as Wickard, much less Raich. So, it seems odd to claim that the document was understood to grant such broad power, when the debates of the time didn’t claim that it did and it wouldn’t have been ratified had it been understood that way.

  168. #168 |  delta | 

    #167 | freedomfan: “So, do you teach what the words in the clause meant at the time they were ratified? E.g., that “to regulate” held the connotation of “to make regular”, more akin to what might be phrased as “to eliminate irregularity” in more modern terms?”

    I don’t agree with either one of you guys above, but I’ll pick on this. I am enormously skeptical of these “words don’t mean what you think they mean” re-interpretations. Exponentially so in this case because I also hear NRA aficionados claiming that the “regulated” in the 2nd Amendment means “well equipped and armed”.

    Please cite a source for this claim (quote, name, link) or I will continue to disbelieve the “redefine the words” brigade.

  169. #169 |  Graham Shevlin | 

    In reponse to Radley’s question: Yes, I would have objected if the article had begun with “righties” or “conservatives”. Both as lazy in their own way as “lefties”.

  170. #170 |  freedomfan | 

    I hesitate to look up citations for people in blog comments, especially since past experience supports the concern that “I won’t believe you unless you show me a cite” really means “no matter what citations you give, I will continue to believe what I believed before.” And, of course, that concern isn’t exactly allayed by people in this thread claiming (or pointedly ignoring challenges to the claim), basically, that the constitution goes through the trouble to outline a narrow set of powers for the federal government and then turns right around and gives it unlimited power in one sentence. One doesn’t need a scholarly source to see that claim isn’t especially sensible.

    However, I will give you a citation of a law professor who has written referred journal articles on this very subject as well as scholarly books and I hope that you read it. Randy E. Barnett (professor of legal theory at Georgetown University) “The Original Meaning of the Commerce Clause”, vol 68, University of Chicago Law Review pp. 101-147 (2001). U of Ch Law Review has it’s archives on a pay for access site, but Barnett has the article available as a PDF file.

    BTW, the term “well regulated” in the 2nd amendment uses the word regulate in the same sense of “to make regular” that I used above. That is, the need for a well regulated militia couldn’t be met if some militia members were equipped with rifles and some were equipped with rocks and sticks; such an irregularly equipped (equipped with vastly different weaponry) force would not be adequate to its purpose.

  171. #171 |  theBuckWheat | 

    We have gotten ourselves in a very sad condition. The judiciary has enshrined precedent to such an extent that it has “precedented” much of the restrictions on enumerated powers out of the Constitution. Indeed, it appears that the real Constitution has been exiled and replaced with a nullified shadow. This is not a far out subject, for I recall no less than Senator Schumer worried enough that some people might hold that opinion he asked John Roberts about it during his confirmation hearing.

    Worse, while the judiciary still recognizes expansive protections favored by liberals (er, “progressive”) such as abortion and free speech in the form of “art” and flag burning, it is happy to expand any government power having to do with the environment or with money. The Commerce Clause is like one size fits all panty hose. An interstate nexus was the basis for Wickard. If we can find interstate commerce in your field of wheat, we can find it in your toilets, shower heads and light sockets too!

    The only recourse, I fear, is that the States are going to have to retrieve and revive their lost powers through a Convention. We must do something before the ever-expanding Federal Leviathan State throws us into debt serfdom. I don’t have much hope that Congress will pass any Constitutional Amendments like the one proposed by Randy Barnett. However, stranger things have happened, like the experiment of Prohibition.

  172. #172 |  Herb | 

    @Challeron:
    “in losing my job I lost my health insurance; but I couldn’t buy an individual health insurance policy from anyone — even though I could afford it — because I have a “pre-existing condition” ”

    Hmmm…seems like you shouldn’t have that problem in the near future, since Obamacare effectively made “pre-existing conditions” a thing of the past.

    Also, that you have a nice, helpful doctor is awesome. But understand that’s a rarity and many doctors don’t care if they have to fill out more paperwork…if they make more money. (More money=hire someone to fill out the paperwork.)

    @ Steve Verdon

    “I know, I know you’ll claim that Medicare is cheaper than private health insurance in terms of administrative costs.”

    Nah…it’s probably a wash. Medicare, though, because of the enormous buying power of the US government, does increase prices pretty much across the board. (Argument #1 for why “single-payer” would be a nightmare.)

    What I’m saying is that if preserving the private-for-profit health care system was our goal, then the individual mandate is a means to that goal. Let’s remember, there were people in high places who wanted to chuck the private-for-profit healthcare system COMPLETELY. It is not, as it turns out, a means to give the government ever increasing control of our lives. (Precisely the opposite, in fact.)

    People who benefit from insurance pools without contributing now must contribute. So what’s the problem with that?

  173. #173 |  cApitalist | 

    #150:
    “If having people do stuff against their will is tyranny, then any and all government is tyranny. Period. And that’s pure bullshit.”

    There you have it ladies and gentlemen, with one post Fargus has put to rest all the arguments of Spooner, Hoppe, and Rothbard. It is simply bullshit. So speaketh Fargus.

  174. #174 |  An Answer to Radley Balko’s “Honest Question” About What Constitutional Limits “the Left” Accepts – Left Blog Feeds | 

    […] at The Agitator, Radley Balko says liberal outrage over Judge Henry Hudson’s ruling that the individual mandate is un-Constitutional […]

  175. #175 |  What Can’t Congress Do Now? | 

    […] It’s a question I noted Randy Barnett asking a few months ago, with some added salience now that a federal judge has ruled the individual mandate unconstitutional. Others have been asking similar questions, including Megan McArdle and Radley Balko. […]

  176. #176 |  Steve Verdon | 

    Nah…it’s probably a wash. Medicare, though, because of the enormous buying power of the US government, does increase prices pretty much across the board. (Argument #1 for why “single-payer” would be a nightmare.)

    If a private firm does this…its bad (monopsony power), but the government…why it is a good thing to transfer wealth from one group to another! Yippee!

    What I’m saying is that if preserving the private-for-profit health care system was our goal, then the individual mandate is a means to that goal. Let’s remember, there were people in high places who wanted to chuck the private-for-profit healthcare system COMPLETELY. It is not, as it turns out, a means to give the government ever increasing control of our lives. (Precisely the opposite, in fact.)

    The problem is that the current reform wont preserve anything it will just bring the day of reckoning closer to realization. The cost containment measures in the reform legislation have largely been measures Congress could have taken, indeed was supposed to have taken ever year for something like the past 10 but has passed on it. Now is going to be different with even more draconian containment measures? I don’t think so…the chief actuary of Medicare doesn’t think so, and neither does the CBO.

    If having people do stuff against their will is tyranny, then any and all government is tyranny. Period. And that’s pure bullshit.

    And war is peace, freedom is slavery, and ignorance is strength, you forgot those Fargus.

  177. #177 |  Yglesias» Chin-Strumming on the Constitution « Politics | 

    […] law” is 97 percent pointless, but as an intellectual exercise here’s aquestion from Radley Balkoand an answer below the […]

  178. #178 |  Challeron | 

    Herb@172, you’re missing my point: I won’t be getting Obamacare, because I can’t pay for it, and the Feddle Gummint can’t tax my income because I don’t have any. (I don’t own any Real Estate either.) But, more to the point, I’m still seeing the doctor that I chose, by paying cash, rather than being forced to some mall-kiosk-based McDoc, which is all that any of us are likely to see after Obamacare finishes off what Medicare started, i.e., making quality medical care unprofitable.

    Weren’t you commenting, upthread, that the Greedy Bastards (or words to that effect) could damn well go broke, and we’d import the finest medical minds from overseas? My doctor has already suggested to me that he’s going to stop taking Medicare/Medicaid patients, because da Gummint doesn’t seem to think that actually paying for the care of said patients is important to them (“Doctor’s Fix”? When we’re the only game in town? You’re kidding, right?); and when doctors leave the profession, and we’ve gotten down to the level of Medicine Men willing to take chickens and goats in payment, then I guess we won’t have to worry about any Death Panels anyway….

  179. #179 |  All-American Bears | Just Above Sunset | 

    […] But here’s a question from Radley Balko: […]

  180. #180 |  Herb | 

    “I won’t be getting Obamacare, because I can’t pay for it, and the Feddle Gummint can’t tax my income because I don’t have any.”

    Well, I’m not sure what to tell you. I would say, however, that your situation –being able to afford paying out of pocket despite having no income– is, if not unique, quite rare.

    I also find it hard to believe your doctor is refusing Medicare patients. Even the estimable Dr. Rand Paul doesn’t do that. Not only are those patients in need of care, but Medicare money spends just as good as “Negotiated with Challeron” money. (Besides…if I were your doctor, I’d ask who is the more attractive customer: the guy with no income and no insurance? Or the Medicare patient whose ability to pay is backed by the full faith and credit of US government? That answer should be obvious.)

    As to your fears of this:

    “and when doctors leave the profession, and we’ve gotten down to the level of Medicine Men willing to take chickens and goats in payment.”

    Not gonna happen. You know why? Because when “doctors leave the profession,” what are they going to do with all that medical training? Use it to become a stockbroker?

  181. #181 |  delta | 

    #170 | freedomfan: “However, I will give you a citation of a law professor who has written referred journal articles on this very subject as well as scholarly books and I hope that you read it. Randy E. Barnett (professor of legal theory at Georgetown University) “The Original Meaning of the Commerce Clause”, vol 68, University of Chicago Law Review pp. 101-147 (2001). U of Ch Law Review has it’s archives on a pay for access site, but Barnett has the article available as a PDF file.”

    Also familiar with wasting my time in spurious blog posts, this is why I was careful to define citation above as “(quote, name, link)”. I’m not going to waste my time reading a 50-page article on the off chance that you’re not lying and there’s some tidbit I can filter out that is on-topic. It’s never succeeded in the past. If there’s actually something on-topic therein, it should be a simple matter to quote one or two sentences (look above for several examples where I did that in this thread).

    Otherwise, I’m forced to assume that you’re blowing hot air.

  182. #182 |  Travis Ormsby | 

    Freedomfan says:

    “Not to mention that the clause allows legislation regarding actual interstate commerce, not regarding every activity that has any conceivable impact on commerce, which, as you note, would be all activities.”

    Well, I think this is clearly a case where you are substituting your understanding of the commerce clause for the Supreme Court’s understanding. While it may be the case that your understanding is better, it doesn’t matter. The Court’s rulings in Wickard and Raich indicate to me that the Court believes the power of the commerce clause extends to things that are related to or have an impact on interstate commerce without actually being interstate commerce.

    That’s why I teach it that way. Whatever understanding the framers may or may not have had about what “to regulate” means doesn’t really matter. What matters is how the current Court interprets those words, because that’s the interpretation that governs state action. And it seems foolish for me to assume a different meaning. I would effectively be telling the Court that my understanding of what the Constitution means is better than their understanding.

    I’m certainly not enough of an expert to feel qualified to make that claim. I doubt you are (although maybe you are). Even a guy like Randy Barnett, who probably is so qualified seem to want to argue not that the Court’s previous interpretation was wrong, so much as that interpretation doesn’t apply to the Affordable Care Act and a different rule should be used to rule it unconstitutional. It’s important to note that big shot lawyers who are by no means lefties (Orin Kerr, for example) appear to view this as a losing argument.

  183. #183 |  Radley Balko | 

    I’m not going to waste my time reading a 50-page article on the off chance that you’re not lying and there’s some tidbit I can filter out that is on-topic.

    So you demand that he provide you with a citation. And when he provides one, you refuse to read it because you think he’s probably lying?

  184. #184 |  Brandon | 

    Damn it’s sweet when Radley gets involved in the comments. At least if you’re someone who tends to agree with him. If not, I assume it probably stings a bit. And Herb, your arguments have become entirely incoherent.

  185. #185 |  delta | 

    # #183 | Radley Balko: “So you demand that he provide you with a citation. And when he provides one, you refuse to read it because you think he’s probably lying?”

    Yes. A short quote is both a reasonable expectation and the standard way of providing a citation. I’ve been lied to too many times on the Internet, sent on a wild goose chase for nothing (sometimes 800-page books), to waste time that way again.

    Just provide a short, on-topic quote; it should be very easy. Why be aggressive in response?

  186. #186 |  delta | 

    Okay, since Radley took an interest I’ve dug into this non-searchable/non-copyable PDF and spent time reading & typing up quotes from it myself. Note that freedomfan’s claim upthread was “that “to regulate” held the connotation of “to make regular”, more akin to what might be phrased as “to eliminate irregularity” in more modern terms?”, and this law review article is what he offered to support that.

    First, the phrase “to eliminate irregularity” appears nowhere in the 50-page article. Second, at no point does the author claim that the meaning of “to regulate” has changed over time. Third, the section on “The Meaning of ‘To regulate'” (p. 139-146) has as its entire purpose the question of whether “to regulate” includes the ability “to prohibit” (for example, in the case of drug-use laws):

    Samuel Johnson defines “to regulate” as “1. To adjust by rule or method… 2. To direct” In other words, the term “to regulate” means “to make regular”. The power to regulate is, in essence, the power to say “if you want to do something, here is how you must do it.”… The power to regulate the making of contracts or wills is not the power to prohibit such activity, even though contracts or wills that do not conform to the regulation are necessarily unenforceable. A pure regulation of commerce, then is a set of rules that tells people, “If you want to trade or exchange with others, here is how you must go about it.” [The Original Meaning of the Commerce Clause, p. 139]

    The author also ties this to the 2nd Amendment, again counter to what was claimed upthread, that militias can be governed by rules, but not prohibited entirely:

    That the Constitution uses the term “to regulate” in this sense is made plain by the Second Amendment, the first portion of which reads, “A well-regulated Militia, being necessary to the security of a free State.” A “well-regulated” militia is not a prohibited militia but one that is well drilled. [The Original Meaning of the Commerce Clause, p. 141]

    So, in conclusion: Was freedomfan looking at the article in question when he offered it as a source? No. Does it say what he claims it said in regards to the meaning of “to regulate”? No, actually it says the opposite. Does this turn out to be the case every time someone equivocates over providing a short quote for their citation? Yes, it does.

    Congratulations, freedomfan, you win by once again getting me to read an article which you did not look at in order to verify that it doesn’t say what you claimed it did.

  187. #187 |  freedomfan | 

    Jeez, delta, after complaining about how I must be lying for not providing you a quote, you read the article wherein the author says

    […] “To regulate” generally meant “to make regular” – that is, to specify how an activity must be transacted – when applied to domestic commerce […]

    And, if I recall, I said above that “to regulate” held the connotation of “to make regular”. I guess I should apologize since, before I was asked for a citation and reread the article (which I obviously didn’t have in front of me earlier), I added what I thought would have been a helpful rephrasing that the author doesn’t use. However, I think I supported the basic claim that “to regulate” meant “to make regular”.

    And, btw, though the author goes into to detail to conclude that “to regulate” == “to make regular” in the longer body of the article, you only had to read the single-paragraph abstract to see it. Maybe it was expecting too much of you to click on the link I provided and read the abstract instead of me typing it in.

    Now, I’m not sure where you have shown that the meaning the author describes “says the opposite” of what I said, since I don’t see anything the author says that I disagree with…

    [Rereading my earlier comment] Oops! Now I see where I screwed up. In the earlier post, I was trying to say that today’s students probably assume that the interstate commerce clause give the feds the power to decide and enforce rules “about any aspect of any activity”, but I instead said “about any aspect of an activity”. And, yes, that is contrary to the definition Barnett comes up with, and I agree with his definition. I am a crappy typist, but I should have proofread that more carefully. Sorry. And, I’m doubly sorry if that was the crux of this disagreement.

    To be clear, I was responding to a comment that I took to imply that the interstate commerce clause does allow the feds to make rules about virtually any aspect of any activity. Though I may not have phrased it clearly, my understanding of the history of the commerce clause is that the interstate commerce power was there largely to prevent the states from imposing tariffs on the goods of other states that crossed their borders and from generally legislating rules that would hurt trade between the states. It’s really the broader New Deal-era reading of “commerce” than “regulate” that is more important here (as I’m sure you know, since you read all of Barnett’s piece, which goes into detail on what “commerce” meant).

    Back to the subject of this thread, the bit of Barnett’s article you quoted notes that the power to regulate something is not the power to prohibit it. I think that undermines current use of the commerce clause to justify federal bans on various substances, contra the poorly decided (IMO) Raich ruling. I’ll admit that I don’t have any cites on hand that specifically address whether the commerce clause can be used to prohibit a citizen from not engaging in commerce. But, I think making the case that the CC doesn’t empower banning an activity would at least be helpful in making the case that it doesn’t empower banning a non-activity.

    BTW, I did read the article I pointed you to. I am sorry I misspoke regarding “any” vs. “an”, though I the article does confirm the “regulate” == “make regular” statement, which is what I thought you were questioning in your earlier post. I think that posting a link where reading the first paragraph of a cite would substitute for retyping the paragraph is reasonable, but you are welcome to insist on someone typing in the quotes.

  188. #188 |  freedomfan | 

    Travis Ormsby, of course my view of the Commerce Clause differs from the view of the majority of the current Court’s. However, it’s tough to read Lopez without thinking that my view isn’t completely anathema to the Court, at least from time to time. And, FWIW, as accurate as it is to say that folks like Barnett argue that previous rulings such as Wickard are wrong, it’s just as accurate to say that he is arguing that other previous rulings such as Lochner, Adair, etc. are right. That is, it’s as apt to say the limited-Commerce-Clause people are arguing that the Court is currently wrong and it has been right at other times as it is to say those folks are arguing that they are right and the Court is wrong. It’s not quite as simple as elevating one’s own judgment above the Court’s.

    (BTW, I don’t mean to imply that I know Barnett’s exact thinking on those cases. It may well be that, for instance, Barnett thinks that Lochner is quite flawed.)

    But I agree that the current Court’s reading of the Commerce Clause is what limits state action (or doesn’t limit it, as the case happens to be) and you are perfectly correct in teaching that interpretation. Obviously, the current position of the Court will be most important in a contemporary government class.

    However, debates over these issues are themselves contemporary and it would be useful for students to have some understanding of where the basis for the opposing arguments rests. I mean, I’d hope the kids come away with better tools for engaging these issues than just assuming that the current Court interpretation is all that matters. That’s particularly important in terms of their understanding Court nominee confirmation hearings, which may change the Court’s interpretation; understanding that the Court interpretation wasn’t always what it is today (e.g. the pre-Wickard, Lochner-era Court saw things very differently); understanding cases like (as mentioned before) Lopez and Morrison, where it looked like the Court was re-examining the everything-qualifies-as-interstate-commerce position, and Raich where it ends up looking like they once again see plenary power in the commerce clause; and understanding the current lower-court cases that will eventually get to the Supreme Court and potentially provoke another change in interpretation of what constitutes interstate commerce.

    (Actually I take back the comment about there being any need to understand confirmation hearings. Those are so tightly scripted as to be near-worthless.)

  189. #189 |  delta | 

    Freedomfan, I do agree with the larger point that the Commerce Clause has been overextended in more ways than one. Thanks for the respectful and attentive reply, do appreciate it.

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