I recently promised that I would take up Judge Vinson's absurd contention that the Affordable Care Act is unconstitutional because never before has it been the case that the government can punish you for "failing to buy a product" and that to grant such power would mean "Congress could do almost anything it wanted".
I'll admit, my first reaction to his ruling was anger, followed quickly by dismay. I wondered how someone could be a federal judge and come up with such a looney opinion. But then I decided that maybe it wasn't so obvious to everyone and that I could do a public service by explaining why his ruling is absurd.
I earlier said that the introduction of the idea of a "passive individual failing to engage in commerce" was a 'red herring'. That's a type of informal logical fallacy, which simply refers to the rhetorical practice of introducing a topic or issue that draws attention away from the real issue. Below I'll start out by trying to explain why the concept of a person "failing to engage in commerce" is a red herring, then I'll move on to explaining why even if you think the concept really is to the point, it still doesn't help prove what Vinson wants it to. All along I'll try to tie everything together by making explicit how this is clearly not a constitutional issue.
The Constitution clearly grants the federal government implied powers. And it grants the government the right to control commerce in the U.S. with all the power of the federal government. So who is pushing on us the idea that a health insurance mandate a constitutional issue? As the Romans used to say, "Cui Bono?"
First, let me start out like Socrates or Plato might have. If you accept this first batch of arguments, you probably don't have to keep reading.
Socratic argument 1.
Can the goverment force you to do any thing? Ever? Can anyone? If you have free will, a sound mind and an able body, I don't see how, literally, you can be forced. Don't we really mean that governments and people can make it extremely unpleasant, even unbearable, to reject compliance with a demand? This can be done through fines, incarceration, humiliation, and even execution.
Socratic argument 2.
Is "engaging in commerce" a type of "doing" or isn't it? Yes, of course its a type of doing. Well, can the government punish you for not doing things? Yes of course it can. (E.g. men who don't register for the draft, people who don't pay taxes, people who don't wear their seatbelt). But If the government can punish you for not doing things in general, why does it matter if the doing in question is engaging in commerce?
Socratic argument 3.
Is "'engaging in commerce" the type of thing we call buying? Or is it the type of thing we call selling? Or are both buying and selling engaging in commerce? It seems to me that both buying and selling are engaging in commerce. And its certain that the government can punish you for not selling certain things. So why is being punished for not buying something different?
Socratic argument 4.
Is punishing you for not doing something similar to trying to force you to do something? That is, if I say "if you don't serve me at your restaurant because of my race, I'll have you fined" like saying "You have to serve me at your restaurant regardless of my race"? Its clear as day that the goverment can force you to do things. So what's the real difference?
To me it seems pretty clear that no matter how you slice it, "being punished for not engaging in commerce" is quite a lot like "being forced to engage in commerce". And the government does indeed have the right to do that.
But lets try one more definition of "engaging in commerce" while we're at it. Let's say that entering into a contract is a type of engaging in commerce. What if you want to engage in a marriage contract with someone, be it for love, for a tax or insurance benefit, to further a career, to have children, or for any or all those reasons?
Well, dear reader, in order to engage in that contract if you are a homosexual, you are forced to marry a heterosexual. (In fact, if you really think about it, you have to marry a heterosexual no matter who you are if you want to get married. Or at least, you have to pretend to.) If you're a homosexual this is forcing you to not engage in commerce, but there's an interesting twist: to the extent you lose out on a financial benefit from not marrying because you're homosexual, you are being punished for not engaging in commerce.
Ok, lets switch it up a little. Buying and selling narcotics such as cocaine and heroine is pretty illegal. But the selling of such drugs is actually pretty lucrative, and would be if legalized and licensed. So what happens if you're someone who wants to sell such drugs (don't, they're deadly)? Then you've got a catch-22!! If you do sell illegal drugs, you will be punished for engaging in commerce. But if you don't sell illegal drugs, then you will miss out on the benfit of engaging in commerce. That is, you will be punished for not engaging in commerce. The government isn't doing the punishing, but they're making it very hard for you to try to get the reward.
The Government's Power to Impose the Rights Given to itAs I wrote in my previous discussion of this matter, Alexander Hamilton defended estabilishing a Bank of the United States (and many other worthwhile projects) by pointing to the implied powers granted to the federal government by Article 1 Section 8 of the Constitution and backed that up by explaining that "government must possess the means to attain the ends for which it was estalished or the bonds of society would dissolve" and that "it is inherent in the very definition of government and is essential to every step of the progress to be made by the United States that every power vested in a government is in its nature soverign and includes by force of the term a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power".
This idea has won out consistently in our history, even though people such as Thomas Jefferson tried to stop it.
The terrific book The Metaphysical Club: A Story of Ideas in America explains that back in the mid 1890's there was a massive strike known as the Pullman strike. In a nutshell, the American Railway Union, founded in the summer of 1893 and which represented anyone who worked for a railroad, reached over 150,000 members by the time it was 1 year old. After a successful strike against a railroad in early 1894 it was approached by workers from the Pullman company. They requested the ARU boycott all railroads running Pullman sleepers. The result was that 20 railroad lines in and around Chicago were shut down, basically shutting down all rail in the area and in the end, much of the country. It was a total disaster from the start.
There was some serious discussion as to what the Constitution would allow the federal goverment to do about the situation, but in the end the Supreme Court concluded that "the entire strength of the nation may be used to enforce in any part of the land the full and free excercise of all national powers and the security of all rights entrusted by the Constitution to its care".
If the government has the power to do something, it has the power to get it done, period. (This is similar the argument John Locke gave in justifying governments' right to enforce the death penalty.) So when I hear things like the government's never had the power to "force you to buy something", excuse me if I laugh.
But Still, what does the Constitution have to say about Economic Theories
Not long after the turn of the 20th century, highly influential Justice Oliver Wendel Holmes, who served on the Supreme Court for 30 years, wrote that "a constutition is not intended to embody a particular economic theory" so we can't "conclude our judgment upon the question of whether statutes embodying [some economic theory] conflict with the Constution of the United States" just because we don't like the theory. Put more simply, just because we don't like the economic ideas behind a law doesn't mean we can just conclude that the law is unconstitutional. The economic theory behind the law is irrelevant.
And though it is irrelevant, I'll save you the trouble - yes I am a (mostly) a capitalist. And yes I think capitalism requires strong, sensible regulation in order to be successful. And...
The Government has, in Fact, Forced us to Buy Things for Many Years
Here are just 3 examples, though 1 is enough to prove my point that its not unprecedented, and there are numerous other examples. Feel free to play at home.
Example 1.
When Social Security was created during the New Deal, many people thought it was wonderful that there would finally be a safety net to protect the elderly and the infirm - forcing workers to pay to support the last years of the elderly and to buy into a retirement savings plan for themselves. Some at the time argued that the move was unprecedented and seized power that only the states really had. Some argued that if the federal government was allowed to implement this far reaching system, there would be...say it with me...no limit to what the federal government could do. The Supreme Court disagreed.
Example 2.
The imposition of a federal minimum wage - forcing people to purchase labor at no less than a proscribed minimum amount - was also attacked along the same lines, It was, of course, found constitutional.
Example 3.(State governments do it too)
A Georgia state senator is trying to stop his state from issuing drivers licenses. His argument: We have the right to travel and the government forcing us to obtain driver's licenses (including paying fees) in order to do so is violating that right. He further claimed that its just a step along the road to a fascist state where "agents of the state" can demand your papers. (I take it he hasn't heard about Arizona). That is, there would be...say it with me...no limit to what the federal government could do.
The Difficulty in Enforcing Freedom of Speech
As you know, the First Amendment to the U.S. Constitution protects the freedom of speech. But read it carefully: it says Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. On the face of it, it says nothing about what state or local governments can do to restrict your speech. So does the federal government have the right to tell states whether or not to restrict your speech?
Its actually the 14th Amendment, adopted just after the Civil War, that is used to decide the question. It's "Due Process" clause gives the Federal government the right to stop states from restricting your speech:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
But even that interpretation of the 14th amendment didn't take hold until 1925.
Final Thoughts
Last week the Senate debated whether to add an amiendment to a Federal Aviation Administration-related bill. The amendment made it illegal to point a laser-pointer at an aircraft. The reason for the amendment being suggested was that when a laser-light shines through a cockpit window, it can do bad things like blind the pilot (which is bad in itself) and failing that can disorient a pilot enough to cause plane crashes. (There have been at least 500 case of pilots being blinded or disoriented by laser pointers since 1990). One Senator voted against the amendment because he believed its something that should be left to states to decide. Apparently planes don't fly over state borders, so theres no interstate commerce to deal with, so why involve the federal government. Let each state make its own law whenever they get around to it It won't be hard to pick a jurisdiction when a plane flies over a border at 400 mph. The bill passed 96-1.
My point is that Its good to question any government's authority.But its bad to do so out of ignorance and prejudice. Its bad to look stupid doing so. Why? Because it makes you look like a blockhead, and it poisons the well against those who may have a legitimate point in their criticisms of the government. And when people give you stupid reasons to question legitimate authority, you ought to ask yourself why.
The End.
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