General welfare clause - Page 2 - Tilted Forum Project Discussion Community

samcol · 10-30-2009, 09:44 AM

Quote:

Originally Posted by roachboy

at what point did the federalist papers get elevated to the status of law or a guide to interpreting it?
when were the federalist papers ratified as part of the constitution exactly?
if the federalist papers aren't part of the constitution, and if the constitutional order begins with it's ratification, so begins with the document ratified and not the preliminary debates, what difference does it make what alexander hamilton thought about the general welfare clause and its position? i mean, beyond it being of historical interest, the kind of thing you'd maybe write about were you a legal historian or constitutional historian or working on the late 18th century political culture under the articles of confederation...

I don't think it's a radical concept to look towards the authors of a document when a phrase's meaning comes into question. Most liberals have a hard time doing this because it proves a huge federal government and much of their agenda was never intended. Therefore those thoughts have to be thrown out entirely and labeled irrelevant.

So instead of admitting this and try and work towards a more liberal or larger government through amendments and bills, they have to construe words like the 'general welfare clause' or the 2nd amendment to say things that they don't and never were intended in order to get the agenda through.

If general welfare was supposed to mean what it says today wouldn't the new deal legislation of flown right through the courts instead of FDR stacking them in order to get this change?

Martian · 10-30-2009, 09:58 AM

Quote:

Originally Posted by Spiritsoar

You're correct. But the point is that no one is required absolutely to have auto insurance.

It relates to health care because some of the proposed 'health care reform' plans would require all people to purchase health insurance.

If I'm not mistaken, this is already the case in at least one state (Massachusetts), but I don't live there, so I don't know the particulars.

I think you may have misinterpreted my point. I see the connection, but I don't see how it's a valid or meaningful one (hence, "in any meaningful way").

Publicly mandating that everyone must be insured is not a terrible thing. Publicly mandating that everyone must have private insurance, though, is the wrong way to do that. With out a cost effective government option, preferably geared to income, it ends up being a feeble attempt at reform which only serves to increase the private insurance companies' profit margins.

I'm not completely up to speed, though, so I don't know precisely what form such a mandate is currently taking, or even if it's still a part of the currently proposed reform. Anyone care to provide a link?

Willravel · 10-30-2009, 10:03 AM

Quote:

Originally Posted by samcol

If general welfare was supposed to mean what it says today wouldn't the new deal legislation of flown right through the courts instead of FDR stacking them in order to get this change?

Ah, so you want to protect the Constitution by preventing the president from appointing justices.

dksuddeth · 10-30-2009, 10:18 AM

Quote:

Originally Posted by Willravel

Ah, so you want to protect the Constitution by preventing the president from appointing justices.

not what he meant and you know it. you have heard of FDRs court packing scheme before, right?

The switch in time that saved nine - Wikipedia, the free encyclopedia

http://en.wikipedia.org/wiki/Court_packing

roachboy · 10-30-2009, 10:31 AM

samcol: first off, it is still somehow interesting to me the extent to which those fine fellows at the hoover institution have managed to define everything about contemporary conservative viewpoints, including those of more conservative libertarians. the battle is still the one that pit the old-line hooverites against the new deal. the arguments are still the same too. it's kinda funny to find ourselves in 2009 repeating the debates of the early 1930s.

anyway, the most basic point is, i would expect, obvious: the american constitutional tradition was set up to respond to changing times through the mechanism of precedent as well as through the mechanisms of amendments to the constitution itself. that's how it works. that's what has allowed the united states to avoid having a constitutional crisis for over 200 years--more rigidly written constitutions operating in contexts close to that dreamt about by strict constructionists have had repeated crises.

it doesn't really matter what people in the late 18th century foresaw in terms of the subsequent 200 years. unless you want to attribute some super-human status to the framers, which seems of a piece with the notion that Intent is some kind of transcendent category that can be appealed to in ways that function to juxtapose it to history with the result that history looses.
the framers probably didn't foresee capitalism: i dont see you arguing that therefore capitalism should be abolished.
the framers didn't foresee automobiles: does that mean there should be no laws around cars?
the framers didn't foresee industrial agriculture: does that mean all food safety regulations should be abolished?

Cimarron29414 · 10-30-2009, 10:47 AM

Quote:

Originally Posted by roachboy

samcol: first off, it is still somehow interesting to me the extent to which those fine fellows at the hoover institution have managed to define everything about contemporary conservative viewpoints, including those of more conservative libertarians. the battle is still the one that pit the old-line hooverites against the new deal. the arguments are still the same too. it's kinda funny to find ourselves in 2009 repeating the debates of the early 1930s.

anyway, the most basic point is, i would expect, obvious: the american constitutional tradition was set up to respond to changing times through the mechanism of precedent as well as through the mechanisms of amendments to the constitution itself. that's how it works. that's what has allowed the united states to avoid having a constitutional crisis for over 200 years--more rigidly written constitutions operating in contexts close to that dreamt about by strict constructionists have had repeated crises.

it doesn't really matter what people in the late 18th century foresaw in terms of the subsequent 200 years. unless you want to attribute some super-human status to the framers, which seems of a piece with the notion that Intent is some kind of transcendent category that can be appealed to in ways that function to juxtapose it to history with the result that history looses.
the framers probably didn't foresee capitalism: i dont see you arguing that therefore capitalism should be abolished.
the framers didn't foresee automobiles: does that mean there should be no laws around cars?
the framers didn't foresee industrial agriculture: does that mean all food safety regulations should be abolished?

One could argue that they didn't have to foresee those advancements and simply intended on the States handling those matters. States have automobile laws which differ from state to state, for example. Certainly commerce and agriculture laws, even to food safety have state laws.

Constitutionalist does not equal one who supports lawlessness or an anarchist. It simply means, let the states handle those laws. I will never understand why that is so scary to people.

samcol · 10-30-2009, 11:03 AM

Quote:

Originally Posted by Cimarron29414

One could argue that they didn't have to foresee those advancements and simply intended on the States handling those matters. States have automobile laws which differ from state to state, for example. Certainly commerce and agriculture laws, even to food safety have state laws.

Constitutionalist does not equal one who supports lawlessness or an anarchist. It simply means, let the states handle those laws. I will never understand why that is so scary to people.

And this thought is confirmed in 10th amendment. I never understand why we have to debate every issue on a national level where everyone has to put up with the results whether they want to or not. A more localized approach allows citizens to more easily effect change and doesn't force us to deal with a homogeneous nationwide approach.

roachboy, I do believe the ability to change the Constitution can be a good thing, but I think the pendulum has swung way to far in the wrong direction to a HUGE unmanageable government. Once we enact these types of legislation it becomes very difficult to change or abolish. I mean we've been putting up with some of the problems in the Social Security bill for DECADES. Things like robbing the trust fund as well as increasing lifespans. I see the same thing happening to healthcare with no quick or easy way to change it, in addition to believing it is unconstitutional at the federal level.

roachboy · 10-30-2009, 11:05 AM

there's nothing particularly "scary" about it, cimmaron. the arguments advanced to get to that position, however, simply don't seem to me to hold up---or even to make sense. i can understand an aesthetic preference for states having more power because they're physically closer to you and so appear to be more responsive. i could even see a political case that one could make for it--but not a constitutional one.

don't get me wrong, either--i'm no fan of capitalism and certainly not of the existing american version of it, nor of it's pseudo-democracy in which the polity is politically free one day every two years, four years or six and spends the rest of the time being consumers and pretending that their ability to buy shit is the same as political freedom.

but arguing for states as over against federal administrative authority in itself seems little more to me than a shell game--you move the same problems level to level as if that resolves anything.
and like i said, the constitutional arguments for doing that seem to me silly.
not scary.
silly.

dksuddeth · 10-30-2009, 11:08 AM

Quote:

Originally Posted by roachboy

anyway, the most basic point is, i would expect, obvious: the american constitutional tradition was set up to respond to changing times through the mechanism of precedent

can you show where that is written in to the constitution? because all I've been able to find is the amendment process. In no other place in the constitution is there a 'changing times and circumstances' clause.

rahl · 10-30-2009, 11:36 AM

Quote:

Originally Posted by Spiritsoar

You're not required to have auto insurance. You are required to have auto insurance if you wish to legally own and operate a vehicle, but you're not required to own a vehicle by law either.

Fine I'll use an example on par with yours. You will be required to carry health insurance if you wish to obtain any medical advice or treatment, but your not required to have any medical treatment by law.

Willravel · 10-30-2009, 11:56 AM

Quote:

Originally Posted by dksuddeth

not what he meant and you know it. you have heard of FDRs court packing scheme before, right?

I have, but i've never heard of it called a "scheme" before. Was "caper" too dramatic? How about "FDR's Bench Rape Treason Stratagem"?

President Roosevelt got this crazy notion in his head that he'd end the Great Depression, so he started working to draft a massive package of economic programs in order to (and which eventually did) bring about American economic prosperity again. In response, he was called a fascist and a socialist (but it was too early for people to draw Hitler mustaches on his image... it wouldn't have made sense). The Judiciary Reorganization Bill of 1937 simply said that when a Justice turned 70, they'd age out. Do you know the life expectancy in 1937? It was about 60. FDR's opponents, who ended up being totally wrong about the New Deal, characterized it as a court-stacking scheme, but the 75th Congress never would have confirmed a bunch of pro-New Deal justices... so this accusation was bullshit.

The problem is that the propaganda seems a lot more prevalent today than the actual facts of the case (the wiki is a mess).

roachboy · 10-30-2009, 12:15 PM

dk: so the entire american legal system as it extends past the limits of the piece of paper that is the constitution is, in your view, problematic?

i would imagine that the parts which are problematic are the parts you disagree with politically and the parts that aren't are those which you do not disagree with politically.

Spiritsoar · 10-30-2009, 12:30 PM

Quote:

Originally Posted by rahl

Fine I'll use an example on par with yours. You will be required to carry health insurance if you wish to obtain any medical advice or treatment, but your not required to have any medical treatment by law.

Wait, isn't this how it already is?

Well, not quite. When I was younger and uninsured, I did something stupid and broke my hand. The debt from x-rays and cast and visits and all was a decent amount. So I went to the medical office, set up an affordable payment plan, and eventually paid it off.

Laws that require hospitals to provide care in an emergency regardless of ability to pay are a good thing. So are the laws that require you to pay your debt for their services.

rahl · 10-30-2009, 12:50 PM

Quote:

Originally Posted by Spiritsoar

Wait, isn't this how it already is?

Well, not quite. When I was younger and uninsured, I did something stupid and broke my hand. The debt from x-rays and cast and visits and all was a decent amount. So I went to the medical office, set up an affordable payment plan, and eventually paid it off.

Laws that require hospitals to provide care in an emergency regardless of ability to pay are a good thing. So are the laws that require you to pay your debt for their services.

Then why is it required to have insurance to own and operate a motor vehicle. Why couldn't you just set up a payment plan with the person who's car you smashed?

It's the same principle. By requiring everyone to carry some form of health insurance, be it public option or private, the over all cost of health care services will go down since there won't be any non payments for procedure. Economically speaking it's foolproof

dksuddeth · 10-30-2009, 12:56 PM

Quote:

Originally Posted by roachboy

dk: so the entire american legal system as it extends past the limits of the piece of paper that is the constitution is, in your view, problematic?

i would imagine that the parts which are problematic are the parts you disagree with politically and the parts that aren't are those which you do not disagree with politically.

normally I would call out someone for thinking that i'm simply an ideologue and wish to pick and choose only parts of the constitution that I agree with, but in this case it wouldn't matter. you don't like conservatives nor libertarians and you especially dislike conservative libertarians. You probably wouldn't accept my premise that I don't pick and choose parts of the constitution that only I like, I pick and choose it all as it pertains to limited powers of the government. I know that's counter to your philosophy.

and yes, the entire american legal system, as well as political system is problematic precisely because it has not only exceeded the limits of the constitution, but practically ignores almost all of it.

Spiritsoar · 10-30-2009, 12:59 PM

Quote:

Originally Posted by rahl

Then why is it required to have insurance to own and operate a motor vehicle. Why couldn't you just set up a payment plan with the person who's car you smashed?

It's the same principle. By requiring everyone to carry some form of health insurance, be it public option or private, the over all cost of health care services will go down since there won't be any non payments for procedure. Economically speaking it's foolproof

That's assuming a public option exists. But people who can't afford the insurance for their vehicle have the option of not owning one. Under some proposals (without public option) you either pay or get fined. Where does this leave the people who can't afford either?

On a side note, I really don't know where I stand on this whole situation of health care reform or what's right. I just think the auto insurance comparison is silly.

dksuddeth · 10-30-2009, 01:00 PM

Quote:

Originally Posted by rahl

Then why is it required to have insurance to own and operate a motor vehicle. Why couldn't you just set up a payment plan with the person who's car you smashed?

you really need the answer to this?

the states require it's citizens to obtain auto insurance because if they don't (something that is still an option if enough people demand it) then the feds simply deny them federal highway funds.

Quote:

Originally Posted by rahl

It's the same principle. By requiring everyone to carry some form of health insurance, be it public option or private, the over all cost of health care services will go down since there won't be any non payments for procedure. Economically speaking it's foolproof

this only happens by completely controlling the costs of all healthcare related items via the law. If you don't control costs, those mandatory insurance policy costs will increase to cover the health insurance companies overhead and profit margin.

roachboy · 10-30-2009, 01:05 PM

for the record, dk, i dont dislike anyone personally. i find arguments more and less coherent: things people say make more or less sense to me, depending on the logic. in the case of your position on the constitution, were you arguing as a historian, i'd have nothing in particular to say about it: you'd be encountering the same questions as anyone who was interested in trying to understand the positions and contexts that shaped the writing of the constitution. sometimes really interesting work can happen using that approach--look at keith baker's thing on the process that resulted in the declaration of the rights of man during the french revolution for example. but these are historical/exegtical exercises. the problem with your position is that it sets up "intent" as a transcendent principle and juxtaposes that to history as it's played out, and so to the legal tradition in the united states as it has operated for 200 odd years, and try to make political/legal arguments based on that.

from a methodological viewpoint, you can't do that even in historical writing. you cannot reconstruct intent. you can't do it.
you cannot tell for example anything at all about my intent from these sentences. you can construct and interpretation of it--but another could juxtapose another and there'd be no appeal to the writer, only to the words and in the end the question of which interpretation "works" would be a function of how closely it stuck to the surface of the sentences and what the framework that was used to set the interpretive machinery into motion.

so the problem i have with your position really has nothing to do with my "dislike" of this or that political position--it has first and foremost to do with the fact that you are making naive use of the category of intent to set into motion a sequence of claims that can't be compelling, in my view, because their premise is faulty. that you derive political correlates from these faulty premises that i don't agree with on other grounds of course doesn't help matters. but don't take it personally. it's just a logic game. we're on a messageboard. no-one cares what we say. this isn't a political space really. it's a parlor game. it's not personal. it's just a game that amuses us to play.

dksuddeth · 10-30-2009, 02:42 PM

Quote:

Originally Posted by roachboy

for the record, dk, i dont dislike anyone personally. .

you are correct. I should have stated that you don't like the philosophy and ideology, not referred to them as pronouns. My apologies for that. I didn't intend to state that you dislike conservative and libertarian people.

Willravel · 10-30-2009, 02:59 PM

Quote:

Originally Posted by roachboy

but don't take it personally. it's just a logic game. we're on a messageboard. no-one cares what we say. this isn't a political space really. it's a parlor game. it's not personal. it's just a game that amuses us to play.

This should be on the front page of the forum right under the title.

rahl · 10-30-2009, 07:30 PM

Quote:

Originally Posted by Spiritsoar

That's assuming a public option exists. But people who can't afford the insurance for their vehicle have the option of not owning one. Under some proposals (without public option) you either pay or get fined. Where does this leave the people who can't afford either?

On a side note, I really don't know where I stand on this whole situation of health care reform or what's right. I just think the auto insurance comparison is silly.

I admit I haven't read the current bill, I would assume that if a public option doesn't exist then the gov't isn't going to force someone who can't possibly afford health insurance to buy it or be fined. But if one exists then you should have to have either the public option or private insurance in order to be treated medically.

Sun Tzu · 10-30-2009, 07:48 PM

Quote:

Originally Posted by SecretMethod70

certainly if states are able to opt out

Do you think any states will opt out?

guy44 · 10-30-2009, 08:01 PM

Quote:

Originally Posted by Cimarron29414

Again, the question is: Where in the Constitution is Congress authorized to REQUIRE an individual to purchase something.

Fuck it, I'll answer it myself. It is absolutely not there. Thus, any bill which contains such wording is unconstitutional. Those writing this bill KNOW that this provision is unconstitutional, and they are writing it anyway. Those same people swore an oath to uphold the constitution. Take that for what it's worth - nothing.

Well, its good to see the constitutional scholars making their voices heard.

The government requires you to buy car insurance if you want to drive. I'm not a constitutional scholar either, but it appears that nobody of any consequence actually believes any of these crazy "it is not constitutional" arguments. Certainly none of the legit con law scholars. I'm pretty content with that.

Willravel · 10-30-2009, 08:34 PM

Quote:

Originally Posted by Sun Tzu

Do you think any states will opt out?

Some red states might, at first. If the PU is a success, though, they'll eventually opt back in again.

If it's not a success, I'd like to opt into Canada.

SecretMethod70 · 10-31-2009, 07:17 AM

Quote:

Originally Posted by guy44

Well, its good to see the constitutional scholars making their voices heard.

The government requires you to buy car insurance if you want to drive. I'm not a constitutional scholar either, but it appears that nobody of any consequence actually believes any of these crazy "it is not constitutional" arguments. Certainly none of the legit con law scholars. I'm pretty content with that.

It's been pointed out that auto insurance is an entirely different case. This issue, by the way, is significant on both sides of the debate. A few weeks ago I was at a meeting of the Progressive Democrats of America and they were expressing their hopeful belief that if a bill is passed with a mandate and without a public option, it will end up overturned in court. Even the people who support reform recognize that a mandate, especially without a public option, represents more money for the insurance companies and nothing else.

---------- Post added at 10:17 AM ---------- Previous post was at 10:16 AM ----------

Quote:

Originally Posted by Sun Tzu

Do you think any states will opt out?

Absolutely. Texas and South Carolina, for starters.

filtherton · 10-31-2009, 07:30 AM

I think the opt out clause should require that if a state opts out, its legislators must also opt out of whatever government run plan they're on. I'm annoyed as fuck by my governor, who I'm fairly certain is on a government run health insurance plan, complain about how horrible government run plans are.

dksuddeth · 10-31-2009, 09:17 AM

Quote:

Originally Posted by guy44

Well, its good to see the constitutional scholars making their voices heard.

The government requires you to buy car insurance if you want to drive. I'm not a constitutional scholar either, but it appears that nobody of any consequence actually believes any of these crazy "it is not constitutional" arguments. Certainly none of the legit con law scholars. I'm pretty content with that.

once again. the federal government CAN NOT REQUIRE YOU TO BUY AUTO INSURANCE!!!!!

they get around this by denying federal highway funds to the states if the states don't require it. Therefore, any FEDERAL lawsuit that has been brought up on it has failed because the USSC has ruled that denying funding to states is not unconstitutional. That also puts a hole in the general welfare clause if the feds can refuse to pay for the general welfare of certain states.

Derwood · 10-31-2009, 11:57 AM

I don't understand the ideology where strict adherence to the constitution outweighs something that is undeniably good (e.g. The New Deal). All I ever hear is "The New Deal was unconstitutional!!111!!" attached to some absurd claim that a strictly constructionist approach to getting out of the Great Depression would have somehow been as (or more) successful.

samcol · 10-31-2009, 12:08 PM

Quote:

Originally Posted by Derwood

I don't understand the ideology where strict adherence to the constitution outweighs something that is undeniably good (e.g. The New Deal). All I ever hear is "The New Deal was unconstitutional!!111!!" attached to some absurd claim that a strictly constructionist approach to getting out of the Great Depression would have somehow been as (or more) successful.

New Deal undeniably good....

dksuddeth · 10-31-2009, 12:50 PM

Quote:

Originally Posted by Derwood

I don't understand the ideology where strict adherence to the constitution outweighs something that is undeniably good (e.g. The New Deal). All I ever hear is "The New Deal was unconstitutional!!111!!" attached to some absurd claim that a strictly constructionist approach to getting out of the Great Depression would have somehow been as (or more) successful.

why have a constitution then? just let the government do what they think is best for us, right?

Willravel · 10-31-2009, 01:25 PM

We do have a Constitution and it includes the General Welfare clause, which has been decided (by a non-stacked SCOTUS) to include things like social programs. It's constitutional according to the court, therefore it's constitutional. Everything else is simply opinion. You're welcome to your opinion, but you're suggesting your opinion in fact when it's not.

The opinions that matter when it comes to the law are the opinions of a majority of the Supreme Court when the judgment came. Maybe in the future a bench will decide otherwise, but for the time being that's the way it is, and it very likely extends to things like federal health care.

It'd be nice if it were 1945 and we were trying single-payer on a state-by-state basis, but 45,000 Americans a year are dying because of an inept/corrupt private insurance system. How you can argue that the government is protecting the general welfare by not providing a service that would save fifteen times the amount of lives lost on 9/11 is beyond me.

Derwood · 10-31-2009, 01:50 PM

Quote:

Originally Posted by samcol

New Deal undeniably good....

putting Americans to work building infrastructure was bad?

dksuddeth · 10-31-2009, 07:45 PM

Quote:

Originally Posted by Willravel

We do have a Constitution and it includes the General Welfare clause, which has been decided (by a non-stacked SCOTUS) to include things like social programs. It's constitutional according to the court, therefore it's constitutional. Everything else is simply opinion. You're welcome to your opinion, but you're suggesting your opinion in fact when it's not.

The opinions that matter when it comes to the law are the opinions of a majority of the Supreme Court when the judgment came. Maybe in the future a bench will decide otherwise, but for the time being that's the way it is, and it very likely extends to things like federal health care.

It'd be nice if it were 1945 and we were trying single-payer on a state-by-state basis, but 45,000 Americans a year are dying because of an inept/corrupt private insurance system. How you can argue that the government is protecting the general welfare by not providing a service that would save fifteen times the amount of lives lost on 9/11 is beyond me.

I'm betting that you wouldn't have such an expansive view of the general welfare clause if the courts called taxes to pay for blackwater/Xe to provide urban security against leftwing protesters as constitutional.

KirStang · 10-31-2009, 08:56 PM

Quote:

Originally Posted by Willravel

We do have a Constitution and it includes the General Welfare clause, which has been decided (by a non-stacked SCOTUS) to include things like social programs. It's constitutional according to the court, therefore it's constitutional. Everything else is simply opinion. You're welcome to your opinion, but you're suggesting your opinion in fact when it's not.

The opinions that matter when it comes to the law are the opinions of a majority of the Supreme Court when the judgment came. Maybe in the future a bench will decide otherwise, but for the time being that's the way it is, and it very likely extends to things like federal health care.

It'd be nice if it were 1945 and we were trying single-payer on a state-by-state basis, but 45,000 Americans a year are dying because of an inept/corrupt private insurance system. How you can argue that the government is protecting the general welfare by not providing a service that would save fifteen times the amount of lives lost on 9/11 is beyond me.

You know, that is all and well, until you consider that those constitution-defying decisions were influenced under threat of 'packing' the court with Justices who WILL ratify the legislation.

So it goes something like this:
1.) During the depression era, Congress passes a bunch of new bills.
2.) Many of the bills are struck down as unconstitutional.
3.) FDR and congress are pissed, so they come up with the idea of putting as many as 15 justices on the Bench--thereby effectively overruling the Supreme Court.
4.) Supreme Court finally relents and allows the new bills to stand.

It is right to say, "Yes, the SCOTUS decides and that's how it is." But it's also worth noting that sometimes, the SCOTUS is not above politics in deciding what is best for the nation.

I'm all for universal healthcare. But proceed cautiously!

Willravel · 10-31-2009, 09:51 PM

Quote:

Originally Posted by dksuddeth

I'm betting that you wouldn't have such an expansive view of the general welfare clause if the courts called taxes to pay for blackwater/Xe to provide urban security against leftwing protesters as constitutional.

You're not reading what I'm writing. I'd be of the opinion that such funding is a terrible idea, but if the SCOTUS declared it constitutional, it would be constitutional. That's how this works.

Quote:

Originally Posted by KirStang

You know, that is all and well, until you consider that those constitution-defying decisions were influenced under threat of 'packing' the court with Justices who WILL ratify the legislation.

Only that's not how it happened. Congress never ever would have passed such legislation and everyone, including the old men on the bench, knew it. Congressional conservatives and liberals weren't quiet about it either.

Quote:

Originally Posted by KirStang

It is right to say, "Yes, the SCOTUS decides and that's how it is." But it's also worth noting that sometimes, the SCOTUS is not above politics in deciding what is best for the nation.

I once made the argument that many SCOTUS decisions were politically motivated, and that some of the justices were clearly biased. You should ask Cynth, Jazz, and Loq if the Supreme Court has political biases.

You're right, the Supreme Court can and does sometimes use political beliefs and the atmosphere to factor into decisions, regardless of what SCOTUS apologists might say. Still, despite the fact that we may not agree with their decisions, those decisions are the law. I can't suggest overturning political decisions I disagree with without suggesting overturning everything from Roe v. Wade to Brown v. Board of Education to Lawrence v. Texas.

I don't agree with everything the legislative or executive does either, but I know when laws are voted through the house and senate and get the president's signature, they're law.

guy44 · 11-12-2009, 04:18 PM

The individual mandate will almost surely be ruled constitutional.

Link 1.

Quote:

The legal question isn't whether it would be unusual for the government to compel people to buy health insurance. It's whether it would square with the Constitution. Mark Hall, a professor of law at Wake Forest University, argues that it would, in part based on the commerce clause, which since the New Deal has permitted the federal government to expand its power in various ways by defining various activities as "interstate commerce." Although health delivery is often local, Hall writes, "most medical supplies, drugs and equipment are shipped in interstate commerce." More to the point, "most health insurance is sold through interstate companies."

Yes, counter Urbanowicz and Smith, but "it is a different matter to find a basis for imposing Commerce Clause related regulation on an individual who chooses not to undertake a commercial transaction." Does the commerce clause cover your refusal to engage in interstate commerce?

Well, yes, Hall in effect answers, because when a person declines to purchase health insurance, that affects interstate commerce, too, by driving up health insurance premiums for everyone else:

Covering more people is expected to reduce the price of insurance by addressing free-rider and adverse selection problems. Free riding includes relying on emergency care and other services without paying for all the costs, and forcing providers to shift those costs onto people with insurance. Adverse selection is the tendency to wait to purchase until a person expects to need health care, thereby keeping out of the insurance pool a full cross section of both low and higher cost subscribers. Covering more people also could reduce premiums by enhancing economies of scale in pooling of risk and managing medical costs.

In essence, the commerce clause enables the economic arguments for the individual mandate to become legal arguments as well.

Urbanowicz and Smith next reach for that perennial conservative favorite, the Fifth Amendment's takings clause, which says the government may not take property from a citizen without just compensation. "Requiring a citizen to devote a percent of his or her income for a purpose for which he or she otherwise might not choose based on individual circumstances," Urbanowicz and Smith write, "could be considered an arbitrary and capricious 'taking.' …"

But according to Akhil Reed Amar, who teaches constitutional law at Yale, the case law does not support Urbanowicz and Smith. "A taking is paradigmatically singling out an individual," Amar explains. The individual mandate (despite its name) applies to everybody. Also, "takings are paradigmatically about real property. They're about things." The individual mandate requires citizens to fork over not their houses or their automobiles but their money. Finally, Amar points out, the individual mandate does not result in the state taking something without providing compensation. The health insurance that citizens must purchase is compensation. In exchange for paying a premium, the insurer pledges (at least in theory) to pay some or all doctor and hospital bills should the need arise for medical treatment. The individual mandate isn't a taking, Amar argues. It's a tax.

But how can it be a tax if the money is turned over not to the government but to a private insurance company? William Treanor, dean of Fordham Law School and an expert on takings, repeated much of Amar's analysis to me (like Amar, he thinks a takings-based argument would never get anywhere), but instead of a tax he compared the individual mandate to the federal law mandating a minimum wage. Congress passes a law that says employers need to pay a certain minimum amount not to the government but to any person they hire. "The beneficiaries of that are private actors," Treanor explained. But it's allowed under the commerce clause. "Minimum wage law is constitutional." So, too, then, is the individual mandate.

Link 2

Quote:

Is it unconstitutional to mandate health insurance? It seems unprecedented to require citizens to purchase insurance simply because they live in the U.S. (rather than as a condition of driving a car or owning a business, for instance). Therefore, several credentialed, conservative lawyers think that compulsory health insurance is unconstitutional. See here and here and here. Their reasoning is unconvincing and deeply flawed. Since I’m writing in part for a non-legal audience, I’ll start with some basics and provide a lay explanation. (Go here for a fuller account).

Constitutional attacks fall into two basic categories: (1) lack of federal power (Congress simply lacks any power to do this under the main body of the Constitution); and (2) violation of individual rights protected by the “Bill of Rights.” Considering (1), Congress has ample power and precedent through the Constitution’s “Commerce Clause” to regulate just about any aspect of the national economy. Health insurance is quintessentially an economic good. The only possible objection is that mandating its purchase is not the same as “regulating” its purchase, but a mandate is just a stronger form of regulation. When Congressional power exists, nothing in law says that stronger actions are less supported than weaker ones.

An insurance mandate would be enforced through income tax laws, so even if a simple mandate were not a valid “regulation,” it still could fall easily within Congress’s plenary power to tax or not tax income. For instance, anyone purchasing insurance could be given an income tax credit, and those not purchasing could be assessed an income tax penalty. The only possible constitutional restriction is an archaic provision saying that if Congress imposes anything that amounts to a “head tax” or “poll tax” (that is, taxing people simply as people rather than taxing their income), then it must do so uniformly (that is, the same amount per person). This technical restriction is easily avoided by using income tax laws. Purists complain that taxes should be proportional to actual income and should not be used mainly to regulate economic behavior, but our tax code, for better or worse, is riddled with such regulatory provisions and so they are clearly constitutional.

Arguments about federal authority deal mainly with states’ rights and sovereign power, but the real basis for opposition is motivated more by sentiments about individual rights - the notion that government should not use its recognized authority to tell people how to spend their money. This notion of economic liberty had much greater traction in a prior era, but it has little basis in modern constitutional law. Eighty years ago, the Supreme Court used the concept of “substantive due process” to protect individual economic liberties, but the Court has thoroughly and repeatedly repudiated this body of law since the 1930s. Today, even Justice Scalia regards substantive due process as an “oxymoron.”

Under both liberal and conservative jurisprudence, the Constitution protects individual autonomy strongly only when “fundamental rights” are involved. There may be fundamental rights to decide about medical treatments, but having insurance does not require anyone to undergo treatment. It only requires them to have a means to pay for any treatment they might choose to receive. The liberty in question is purely economic and has none of the strong elements of personal or bodily integrity that invoke Constitutional protection. In short, there is no fundamental right to be uninsured, and so various arguments based on the Bill of Rights fall flat. The closest plausible argument is one based on a federal statute protecting religious liberty, but Congress is Constitutionally free to override one statute with another.

If Constitutional concerns still remain, the simplest fix (ironically) would be simply to enact social insurance (as we currently do for Medicare and social security retirement) but allow people to opt out if they purchase private insurance. Politically, of course, this is not in the cards, but the fact that social insurance faces none of the alleged Constitutional infirmities of mandating private insurance points to this basic realization: Congress is on solid Constitutional ground in expanding health insurance coverage in essentially any fashion that is politically and socially feasible.

Mark Hall
Professor of Law and Public Health
Wake Forest University School of Law

dksuddeth · 11-12-2009, 04:53 PM

for someone to actually and intellectually honestly believe that congress has the constitutional authority to mandate a private citizen buy health insurance would also have to believe that the commerce clause of the US constitution also gives congress the constitutional power to mandate you buy roses or petunias to plant in your front yard and if they can realistically square that up with the limited power that the founders wanted in a federal government, well then they just either do not understand founding history or they don't care. I'd rather prefer they just admit that they don't care.

flstf · 11-12-2009, 08:03 PM

I agree with dk on this one. It is hard to accept that the commerce clause can be used to force individuals to buy a product in order to increase the volume to keep the price down. Something is very wrong with this concept.

Quote:

"it is a different matter to find a basis for imposing Commerce Clause related regulation on an individual who chooses not to undertake a commercial transaction." Does the commerce clause cover your refusal to engage in interstate commerce?

Well, yes, Hall in effect answers, because when a person declines to purchase health insurance, that affects interstate commerce, too, by driving up health insurance premiums for everyone else:

FoolThemAll · 11-13-2009, 11:14 AM

Quote:

Originally Posted by Derwood

putting Americans to work building infrastructure was bad?

There's a vokda that came out this year called New Deal. Really.

Apparently, it's not a good idea to use New Deal when you're already feeling sad, as it will just prolong the depression. On the upside, spending money on a bottle of vodka that you wouldn't otherwise have bought must surely stimulate the economy in some sustainable way. How bad could the side effects possibly be?

Derwood · 11-14-2009, 05:24 AM

Quote:

Originally Posted by FoolThemAll

There's a vokda that came out this year called New Deal. Really.

Apparently, it's not a good idea to use New Deal when you're already feeling sad, as it will just prolong the depression. On the upside, spending money on a bottle of vodka that you wouldn't otherwise have bought must surely stimulate the economy in some sustainable way. How bad could the side effects possibly be?

I have no idea what you're talking about, and now I'm drunk

10-30-2009, 10:31 AM	#45 (permalink)
roachboy Super Moderator Location: essex ma	samcol: first off, it is still somehow interesting to me the extent to which those fine fellows at the hoover institution have managed to define everything about contemporary conservative viewpoints, including those of more conservative libertarians. the battle is still the one that pit the old-line hooverites against the new deal. the arguments are still the same too. it's kinda funny to find ourselves in 2009 repeating the debates of the early 1930s. anyway, the most basic point is, i would expect, obvious: the american constitutional tradition was set up to respond to changing times through the mechanism of precedent as well as through the mechanisms of amendments to the constitution itself. that's how it works. that's what has allowed the united states to avoid having a constitutional crisis for over 200 years--more rigidly written constitutions operating in contexts close to that dreamt about by strict constructionists have had repeated crises. it doesn't really matter what people in the late 18th century foresaw in terms of the subsequent 200 years. unless you want to attribute some super-human status to the framers, which seems of a piece with the notion that Intent is some kind of transcendent category that can be appealed to in ways that function to juxtapose it to history with the result that history looses. the framers probably didn't foresee capitalism: i dont see you arguing that therefore capitalism should be abolished. the framers didn't foresee automobiles: does that mean there should be no laws around cars? the framers didn't foresee industrial agriculture: does that mean all food safety regulations should be abolished? __________________ a gramophone its corrugated trumpet silver handle spinning dog. such faithfulness it hear it make you sick. -kamau brathwaite

10-30-2009, 11:05 AM	#48 (permalink)
roachboy Super Moderator Location: essex ma	there's nothing particularly "scary" about it, cimmaron. the arguments advanced to get to that position, however, simply don't seem to me to hold up---or even to make sense. i can understand an aesthetic preference for states having more power because they're physically closer to you and so appear to be more responsive. i could even see a political case that one could make for it--but not a constitutional one. don't get me wrong, either--i'm no fan of capitalism and certainly not of the existing american version of it, nor of it's pseudo-democracy in which the polity is politically free one day every two years, four years or six and spends the rest of the time being consumers and pretending that their ability to buy shit is the same as political freedom. but arguing for states as over against federal administrative authority in itself seems little more to me than a shell game--you move the same problems level to level as if that resolves anything. and like i said, the constitutional arguments for doing that seem to me silly. not scary. silly. __________________ a gramophone its corrugated trumpet silver handle spinning dog. such faithfulness it hear it make you sick. -kamau brathwaite

10-30-2009, 12:15 PM	#52 (permalink)
roachboy Super Moderator Location: essex ma	dk: so the entire american legal system as it extends past the limits of the piece of paper that is the constitution is, in your view, problematic? i would imagine that the parts which are problematic are the parts you disagree with politically and the parts that aren't are those which you do not disagree with politically. __________________ a gramophone its corrugated trumpet silver handle spinning dog. such faithfulness it hear it make you sick. -kamau brathwaite

10-30-2009, 01:05 PM	#58 (permalink)
roachboy Super Moderator Location: essex ma	for the record, dk, i dont dislike anyone personally. i find arguments more and less coherent: things people say make more or less sense to me, depending on the logic. in the case of your position on the constitution, were you arguing as a historian, i'd have nothing in particular to say about it: you'd be encountering the same questions as anyone who was interested in trying to understand the positions and contexts that shaped the writing of the constitution. sometimes really interesting work can happen using that approach--look at keith baker's thing on the process that resulted in the declaration of the rights of man during the french revolution for example. but these are historical/exegtical exercises. the problem with your position is that it sets up "intent" as a transcendent principle and juxtaposes that to history as it's played out, and so to the legal tradition in the united states as it has operated for 200 odd years, and try to make political/legal arguments based on that. from a methodological viewpoint, you can't do that even in historical writing. you cannot reconstruct intent. you can't do it. you cannot tell for example anything at all about my intent from these sentences. you can construct and interpretation of it--but another could juxtapose another and there'd be no appeal to the writer, only to the words and in the end the question of which interpretation "works" would be a function of how closely it stuck to the surface of the sentences and what the framework that was used to set the interpretive machinery into motion. so the problem i have with your position really has nothing to do with my "dislike" of this or that political position--it has first and foremost to do with the fact that you are making naive use of the category of intent to set into motion a sequence of claims that can't be compelling, in my view, because their premise is faulty. that you derive political correlates from these faulty premises that i don't agree with on other grounds of course doesn't help matters. but don't take it personally. it's just a logic game. we're on a messageboard. no-one cares what we say. this isn't a political space really. it's a parlor game. it's not personal. it's just a game that amuses us to play. __________________ a gramophone its corrugated trumpet silver handle spinning dog. such faithfulness it hear it make you sick. -kamau brathwaite

11-12-2009, 04:53 PM	#77 (permalink)
dksuddeth Junkie Location: bedford, tx	for someone to actually and intellectually honestly believe that congress has the constitutional authority to mandate a private citizen buy health insurance would also have to believe that the commerce clause of the US constitution also gives congress the constitutional power to mandate you buy roses or petunias to plant in your front yard and if they can realistically square that up with the limited power that the founders wanted in a federal government, well then they just either do not understand founding history or they don't care. I'd rather prefer they just admit that they don't care. __________________ "no amount of force can control a free man, a man whose mind is free. No, not the rack, not fission bombs, not anything. You cannot conquer a free man; the most you can do is kill him."

10-31-2009, 07:30 AM	#66 (permalink)
filtherton Junkie Location: In the land of ice and snow.	I think the opt out clause should require that if a state opts out, its legislators must also opt out of whatever government run plan they're on. I'm annoyed as fuck by my governor, who I'm fairly certain is on a government run health insurance plan, complain about how horrible government run plans are.

10-31-2009, 11:57 AM	#68 (permalink)
Derwood Who You Crappin? Location: Everywhere and Nowhere	I don't understand the ideology where strict adherence to the constitution outweighs something that is undeniably good (e.g. The New Deal). All I ever hear is "The New Deal was unconstitutional!!111!!" attached to some absurd claim that a strictly constructionist approach to getting out of the Great Depression would have somehow been as (or more) successful.

10-31-2009, 01:25 PM	#71 (permalink)
Willravel ... a sort of licensed troubleshooter.	We do have a Constitution and it includes the General Welfare clause, which has been decided (by a non-stacked SCOTUS) to include things like social programs. It's constitutional according to the court, therefore it's constitutional. Everything else is simply opinion. You're welcome to your opinion, but you're suggesting your opinion in fact when it's not. The opinions that matter when it comes to the law are the opinions of a majority of the Supreme Court when the judgment came. Maybe in the future a bench will decide otherwise, but for the time being that's the way it is, and it very likely extends to things like federal health care. It'd be nice if it were 1945 and we were trying single-payer on a state-by-state basis, but 45,000 Americans a year are dying because of an inept/corrupt private insurance system. How you can argue that the government is protecting the general welfare by not providing a service that would save fifteen times the amount of lives lost on 9/11 is beyond me.