I'm just going to go ahead and declare this as unassailably true - politicians, our elected legislators and executives who create and enforce the laws of our country, should know the Constitution. And I'm not talking about knowledge of the Constitution. For instance, it is not enough for a politician to say, "Oh yes, the Constitution! I have heard of that document. They tell me it is fantastic." No. This is not what I mean. Politicians should know the text - line by line, word by word - by memory. It should be ingrained in their hearts; its words should paper their bedroom and office walls (yes I used paper as a verb...deal with it) - because it is the supreme Law of the Land.
So it both saddens and angers me when our leaders reveal a distinct ignorance of, arguably, the most important document in their lives. Let me preface the heart of my post by disclaiming that I am not picking on any one politician - especially Sarah Palin. I'm not highlighting any of these cases with the intent of mocking someone's intelligence. I am posting about this subject because it frightens me that politicians can get away with such dangerous ignorance. They create new laws! These laws are supposed to be in line with the Constitution. How could this be possible if those creating and ratifying these laws do not even understand the governing document? Anyway, let's get into it.
Some of you may have heard Ms. Palin's attack on the media. If not, here's the article, (it links to the ABC article). Ms. Palin points out that some media outlets are refusing to publish her comments about Barack Obama because those outlets deem the statements to be inflammatory and overly negative. Now, I'm not writing to discuss the merits of that claim - let's leave that to the talking heads. The important thing here, though, is that she argues that this refusal to publish violates her First Amendment freedom of speech rights, because her words are being unfairly singled out and will not be heard by the media's audience. This is nonsense. It informs us that Ms. Palin does not understand - or perhaps, may never have read - the First Amendment.
Let me dispatch with her argument quickly before I talk about the policy ramifications of her statement. First off, textually, the First Amendment prohibits only the Federal Government's passing of laws which abridge the freedom of speech ("Congress shall make no law"). This was later extended to the States by the Fourteenth Amendment. Thus, for the most part (with limited exceptions), private individuals can deprive you of your right to free speech. That's why students have a limited First Amendment right in class. That's why private businesses can control - to some extent - what their employees say. That's why I could tell you to be quiet. So, Ms. Palin's First Amendment rights are not violated by privately run media corporations because the First Amendment does not prohibit them from silencing her. But that brings us to the next point...they aren't silencing her! She can still say whatever she darn well pleases. I guess her argument is that, because enough media outlets are refusing to publish her statements, they are keeping a large audience from hearing her thoughts and expressions. There would be some bite to this argument if the media were State-run. Of course, we're not North Korea and media outlets are private. But even if that were not true, Ms. Palin would still have her work cut out for her in court. Why? Because the First Amendment - and this is important to understand - does not create a private right to an audience. We have the right to express ourselves. We do not have a right to have our expressions recognized or even heard by anyone. In fact, in some cases we have the right to be free from hearing certain types of speech (loud campaigning from "sound trucks," for instance). So, Ms. Palin is on no solid ground whatsoever when she makes her case.
So why even bother with this post? Isn't this the type of "gaffe" we promised we wouldn't discuss in our introductory post? I don't believe that it is. This is more than a mere "misinterpretation." Her comments reveal an utter lack of knowledge of Constitutional scholarship. This is dangerous because she could be the President-in-waiting. But the real issue here is that this is just the tip of the iceberg. Like I said, I'm not picking on Palin. I'm calling out every politician who holds irrational views about the Constitution. Just as EJB wrote about politicians and their lack of economic knowledge, I note the problems of electing leaders who do not understand the underlying principles of the laws they are expected to create. This problem is, unfortunately, bipartisan. I've already pointed out Joe Biden's misquoting of the Constitution. There is the famous case of Ronald Reagan's Secretary of State Alexander Haig, who failed to understand the proper Constitutionally-mandated Presidential line of succession (he yelled out "I am in control here" after Reagan was shot). Even President's are guilty of Constitutional ignorance. Nixon famously argued that "when the President does it, it is not illegal." And President Bush has taken Constitutional ignorance to its logical (and deplorable) outcome: shunning the Constitution entirely ( "a goddamn piece of paper").
This is cause for concern. Reading the Constitution ought to be a prerequisite for holding any national public office. It is the backbone of our legal system and the preserver of our freedoms. How can we hope to live in a constitutionally protected society when our leaders can't correctly quote or appropriately reference the document? I'm not arguing that every politician must be a constitutional scholar. I'm simply hoping that those entrusted with the role of creating the laws which govern our society can find it in themselves to take the time to sit down, grab a muffin and some coffee, and just read the damn thing. It's short - I promise.
~JSK
Showing posts with label Constitution. Show all posts
Showing posts with label Constitution. Show all posts
Monday, November 3, 2008
Wednesday, October 15, 2008
"War [Crisis] is the Health of the State"
Yesterday, the Treasury announced that it will embark on an historically unprecedented semi-nationalization of a major industry. With the continuing evolution of the “bail out” package, the Treasury will now force nine major financial institutions to sell $250 billion in preferred stock to the government.
I don’t wish to discuss here the economic argument for and against this or whether it will help us in our current situation. Personally, I think there is some merit in this in the short run for stabilizing the economy, but I want to address the broader picture.
What really bothers me is the long term implications of this action with regards to the role of government, the preservation of freedom, and the very system that this country was founded upon. It was famously said by Randolph Bourne, that “War is the health of the state.” I think in general "crisis" is more accurately the health of the state, because in our panic we tolerate the enhancement of unprecedented government power. The problem is, that almost always these extended powers never get removed after the crisis ends. There are a number of areas with this recent action where I have some concerns and questions.
1. What does this mean for property rights? Even though some of these institutions are more then willing to participate in this deal, others are having this forced upon them. By issuing more shares to the government, even if they are being bought, this necessarily dilutes the stake of existing share holders, reducing the percent of the company that they own. In effect, they are having a portion of their property forcibly taken from them. Paulson allegedly told the officers of these nine firms that “they needed to participate in the program for the good of the national economy.” Having this rationale in the wake of the recent Kelo decision, where the Supreme Court ruled that a local government can seize property for the sole purpose of “economic development,” begs the question is there anything fundamentally sovereign about property rights anymore? Do we as individuals only have rights to property in so far as government does not see a better use for it? This completely falls in the face of the principles of no unreasonable search or seizure of the 4th Amendment, where with the exception of eminent domain and punishment for crime, property is protected. Will this set the precedent that government can take your personal property for any reason it sees fit?
2. This only expands the corrupt and disastrous merging of corporate and government power into a Corporatist system. Much of our problem with Fannie Mae and Freddie Mac was its hybrid public/private nature. The government backed private risk taking. These private firms were some of the largest campaign donors to the very people who are charged to oversee them (including our fellow PC alum Chris Dodd, chairman of the Senate Banking and Finance Committee). There were accounting scandals in 2004 that would have been punished by courts in the private sector but largely overlooked because of political influence. Essentially now, the Federal Government has a huge conflict of interest in partially owning a private industry, while at the same time the private industry will be able to wield tremendous power in the halls of government.
3. What happened to personal responsibility? Despite having many incentives to engage in risky lending in recent years, some banks such as Wells Fargo largely avoided this. Now they are being punished for their prudent action. What is the incentive for participants to act responsibly moving forward? What is the disincentive to not act recklessly in the future?
4. This is a major increase in the power of the state and the executive in particular. The “bail out” bill essentially gave a 700 billion dollar blank check to the Treasury Secretary to use as he sees fit. And the purpose of this seems to be changing by the day. First it was to purchase bad mortgage securities via a reverse auction from willing institutions. Then it was extended to include all forms of debt. Then, as the Democrats in Congress wanted, the Treasury COULD buy equity stakes if the firms voluntarily agreed to it. Now the government is forcibly buying equity stakes in these firms. What will it be tomorrow? The forced nationalization of the entire industry? Furthermore, there is no requirement regarding when the government must sell these shares in the future. They could simply keep them indefinitely.
I feel like I need to read my copy of Hayek’s The Road to Serfdom again. I suggest those who have never read it get a copy.
-EJB
_________________________________________________________
While I agree with your concerns, EJB, I believe I'm less worried about this Congressional act than you might be. Thus while I concur with your basic argument, I must write separately to point out a few things.
First, the comparison to Kelo. Now, as those of you who know me know, I am a strong supporter of private property rights and a staunch opponent of eminent domain (to the point where I would suggest abolishing it in all cases). I've even been thrown out of my Constitutional Law class for telling Supreme Court Justice Stephen Breyer that his decision to join the majority in Kelo makes him partially responsible for the fourth worst Supreme Court case in history (closely behind Plessy v. Ferguson, Korematsu v. US, and Buck v. Bell). I also recognize that you are NOT equating the two cases...you are NOT arguing that the bailout is just like Kelo.
However, you do make the argument that: "By issuing more shares to the government, even if they are being bought, this necessarily dilutes the stake of existing share holders, reducing the percent of the company that they own. In effect, they are having a portion of their property forcibly taken from them." This is not exactly the case. Nothing is actually being taken from shareholders, because the preferred stock that is being sold to the Treasury is being created for this specific purpose. Yes it dilutes the value of the stake of the shareholders, but that's all it does. For eminent domain purposes, it would be similar to the government putting a prison right next to your house...it would certainly decrease the value of your property, but it would not constitute a taking. Unless your argument is that the AMOUNT of stock is not the property, but the VALUE of the stock is - however, nothing like this has ever been upheld by the Supreme Court and, in fact, Palazzolo seems to expressly close that avenue of argument.
Similarly, you make the point that the government paid for these shares. This is crucial in any examination of a Takings Clause violation, because takings are allowed if the property owner is "justly compensated." This is why I hate our current Takings Clause analysis. What is "just compensation?" Does it include idiosyncratic value or subjective valuation? (No.)
It's also interesting that you mention the Fourth Amendment. Nowhere in that Amendment is there mentioned an explicit right to private property. But I agree with you that Eminent Domain and other unjustified takings violate the spirit of the Amendment! Does this mean you recognize an implicit fundamental right to both private property and privacy!? I can't believe this is the same EJB that I knew in college!
I completely agree with #2 and #3.
Finally, a few comments on #4. First, "a 700 billion dollar blank check," is logically impossible, because a blank check, by definition, includes no written value. But that's technical. To your point about the drastic increase in executive power, I will say that I'm not as alarmed about that as one might be if this were the executive acting AGAINST the express will of Congress. In Youngstown, the inherent power of the President was examined because Truman tried to take over the steel industry when its workers went on a mass strike during the Korean War. Justice Jackson's concurring opinion is, to this day, the lodestar for such analysis. Basically, the Executive's power is at its strongest when he acts according to the express or implied authority of Congress. His power is at its weakest when he acts contrary to their express or implied will. And there is a middle zone that gets murky when we're not sure what Congress has said on the issue. In this case (the banking crisis), I feel slightly more comfortable with this increase in executive power because it was expressly authorized by Congress. These two forces are naturally opposed to one another, so the fact that they are working in tandem should probably evidence the fact that the increase in power is necessary to quell a pressing problem. Perhaps your "parade of horribles" argument is right and this is the first step towards the nationalization of industry. But with Youngstown firmly in place, I trust it will never come to that point.
~JSK
I don’t wish to discuss here the economic argument for and against this or whether it will help us in our current situation. Personally, I think there is some merit in this in the short run for stabilizing the economy, but I want to address the broader picture.
What really bothers me is the long term implications of this action with regards to the role of government, the preservation of freedom, and the very system that this country was founded upon. It was famously said by Randolph Bourne, that “War is the health of the state.” I think in general "crisis" is more accurately the health of the state, because in our panic we tolerate the enhancement of unprecedented government power. The problem is, that almost always these extended powers never get removed after the crisis ends. There are a number of areas with this recent action where I have some concerns and questions.
1. What does this mean for property rights? Even though some of these institutions are more then willing to participate in this deal, others are having this forced upon them. By issuing more shares to the government, even if they are being bought, this necessarily dilutes the stake of existing share holders, reducing the percent of the company that they own. In effect, they are having a portion of their property forcibly taken from them. Paulson allegedly told the officers of these nine firms that “they needed to participate in the program for the good of the national economy.” Having this rationale in the wake of the recent Kelo decision, where the Supreme Court ruled that a local government can seize property for the sole purpose of “economic development,” begs the question is there anything fundamentally sovereign about property rights anymore? Do we as individuals only have rights to property in so far as government does not see a better use for it? This completely falls in the face of the principles of no unreasonable search or seizure of the 4th Amendment, where with the exception of eminent domain and punishment for crime, property is protected. Will this set the precedent that government can take your personal property for any reason it sees fit?2. This only expands the corrupt and disastrous merging of corporate and government power into a Corporatist system. Much of our problem with Fannie Mae and Freddie Mac was its hybrid public/private nature. The government backed private risk taking. These private firms were some of the largest campaign donors to the very people who are charged to oversee them (including our fellow PC alum Chris Dodd, chairman of the Senate Banking and Finance Committee). There were accounting scandals in 2004 that would have been punished by courts in the private sector but largely overlooked because of political influence. Essentially now, the Federal Government has a huge conflict of interest in partially owning a private industry, while at the same time the private industry will be able to wield tremendous power in the halls of government.
3. What happened to personal responsibility? Despite having many incentives to engage in risky lending in recent years, some banks such as Wells Fargo largely avoided this. Now they are being punished for their prudent action. What is the incentive for participants to act responsibly moving forward? What is the disincentive to not act recklessly in the future?
4. This is a major increase in the power of the state and the executive in particular. The “bail out” bill essentially gave a 700 billion dollar blank check to the Treasury Secretary to use as he sees fit. And the purpose of this seems to be changing by the day. First it was to purchase bad mortgage securities via a reverse auction from willing institutions. Then it was extended to include all forms of debt. Then, as the Democrats in Congress wanted, the Treasury COULD buy equity stakes if the firms voluntarily agreed to it. Now the government is forcibly buying equity stakes in these firms. What will it be tomorrow? The forced nationalization of the entire industry? Furthermore, there is no requirement regarding when the government must sell these shares in the future. They could simply keep them indefinitely.
I feel like I need to read my copy of Hayek’s The Road to Serfdom again. I suggest those who have never read it get a copy.
-EJB
_________________________________________________________
While I agree with your concerns, EJB, I believe I'm less worried about this Congressional act than you might be. Thus while I concur with your basic argument, I must write separately to point out a few things.
First, the comparison to Kelo. Now, as those of you who know me know, I am a strong supporter of private property rights and a staunch opponent of eminent domain (to the point where I would suggest abolishing it in all cases). I've even been thrown out of my Constitutional Law class for telling Supreme Court Justice Stephen Breyer that his decision to join the majority in Kelo makes him partially responsible for the fourth worst Supreme Court case in history (closely behind Plessy v. Ferguson, Korematsu v. US, and Buck v. Bell). I also recognize that you are NOT equating the two cases...you are NOT arguing that the bailout is just like Kelo.
However, you do make the argument that: "By issuing more shares to the government, even if they are being bought, this necessarily dilutes the stake of existing share holders, reducing the percent of the company that they own. In effect, they are having a portion of their property forcibly taken from them." This is not exactly the case. Nothing is actually being taken from shareholders, because the preferred stock that is being sold to the Treasury is being created for this specific purpose. Yes it dilutes the value of the stake of the shareholders, but that's all it does. For eminent domain purposes, it would be similar to the government putting a prison right next to your house...it would certainly decrease the value of your property, but it would not constitute a taking. Unless your argument is that the AMOUNT of stock is not the property, but the VALUE of the stock is - however, nothing like this has ever been upheld by the Supreme Court and, in fact, Palazzolo seems to expressly close that avenue of argument.
Similarly, you make the point that the government paid for these shares. This is crucial in any examination of a Takings Clause violation, because takings are allowed if the property owner is "justly compensated." This is why I hate our current Takings Clause analysis. What is "just compensation?" Does it include idiosyncratic value or subjective valuation? (No.)
It's also interesting that you mention the Fourth Amendment. Nowhere in that Amendment is there mentioned an explicit right to private property. But I agree with you that Eminent Domain and other unjustified takings violate the spirit of the Amendment! Does this mean you recognize an implicit fundamental right to both private property and privacy!? I can't believe this is the same EJB that I knew in college!
I completely agree with #2 and #3.
Finally, a few comments on #4. First, "a 700 billion dollar blank check," is logically impossible, because a blank check, by definition, includes no written value. But that's technical. To your point about the drastic increase in executive power, I will say that I'm not as alarmed about that as one might be if this were the executive acting AGAINST the express will of Congress. In Youngstown, the inherent power of the President was examined because Truman tried to take over the steel industry when its workers went on a mass strike during the Korean War. Justice Jackson's concurring opinion is, to this day, the lodestar for such analysis. Basically, the Executive's power is at its strongest when he acts according to the express or implied authority of Congress. His power is at its weakest when he acts contrary to their express or implied will. And there is a middle zone that gets murky when we're not sure what Congress has said on the issue. In this case (the banking crisis), I feel slightly more comfortable with this increase in executive power because it was expressly authorized by Congress. These two forces are naturally opposed to one another, so the fact that they are working in tandem should probably evidence the fact that the increase in power is necessary to quell a pressing problem. Perhaps your "parade of horribles" argument is right and this is the first step towards the nationalization of industry. But with Youngstown firmly in place, I trust it will never come to that point.
~JSK
Thursday, October 9, 2008
Do the VP Candidates Know What the VP Does?
For that matter, do you? It seems pretty clear that neither Mrs. Palin nor Mr. Biden are aware of the duties of their perspective office. In the VP debate, Mrs. Palin said “I’m thankful that the Constitution would allow a bit more authority given to the vice president if that vice president so chose to exercise it in working with the Senate.” Not to be outdone, Mr. Biden posited that "Article I of the Constitution defines the role of the Vice President of the United States, that’s the Executive Branch. He works in the Executive Branch. He should understand that.” Ah, politicians. I'm actually more inclined to let Biden off the hook because his comment COULD be considered a slip of the tongue. After all, Article I defines the Legislative branch, not the Executive branch - but it does mention the VP in Section 3. Article I, Section 3 states that "The Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided." This is the language that Dick Cheney grounds his argument upon. (Cheney's argument, in case you were unaware, is that the VP is actually a member of both the Executive and Legislative branches of the US Government). Palin's statement is a little more frightening because it seems that she has simply adopted the Cheney stance without having ever really looked at the Constitution. Because, honestly, that's ALL it says about the VP in Article I. That, to me, is not much to hang your hat on if you're arguing that the VP is a legislative officer.
The key problem with arguing for some sort of VP duality is that it violates a fundamental principle that underscores our Constitution , namely, the separation of powers. Cheney's hypothetical VP would be a governmental anomaly. There is no other instance where a single figure could be accurately described as a member of more than one branch of the government - unless you want to argue that the Chief Justice is part of the Executive branch because he swears in the President, but good luck with that one.
The problem, of course, is that the VP's duties aren't actually outlined ANYWHERE in the Constitution. It is clear that much of what the Framers had to say about the VP is found in Article II - and thus we've traditionally defined the role as being executive. Furthermore, it simply makes sense to label the VP an executive because of the hand-in-hand nature of the VP's actions with the President. Clearly, the two are meant to work together. Compare that relationship to Congress or the Supreme Court, where you'll find much disagreement and a fight for supremacy. It would not make sense to allow the Chief Executive Officer's best ally to also be a crucial figure in another branch!
Finally, some scholars who argue contra Cheney point out that in Amendment's 20 and 25, the succession order to the Presidency is laid out in such a way that it makes clear that the VP is an executive. He is next in line for the throne.
So why does any of this matter? Well it's simply bad policy. To allow the VP to assume more power than is alloted to him by the Constitution would violate both the spirit and text of the law of the land. It's also worth noting that the last eight years have seen a dramatic increase of the power of the Executive, a trend that would be exacerbated by this furtherance of VP power. I only hope the VP candidates do some research (for instance...reading the Constitution) on the duties and obligations one of them is about to incur.
~JSK
The key problem with arguing for some sort of VP duality is that it violates a fundamental principle that underscores our Constitution , namely, the separation of powers. Cheney's hypothetical VP would be a governmental anomaly. There is no other instance where a single figure could be accurately described as a member of more than one branch of the government - unless you want to argue that the Chief Justice is part of the Executive branch because he swears in the President, but good luck with that one.
The problem, of course, is that the VP's duties aren't actually outlined ANYWHERE in the Constitution. It is clear that much of what the Framers had to say about the VP is found in Article II - and thus we've traditionally defined the role as being executive. Furthermore, it simply makes sense to label the VP an executive because of the hand-in-hand nature of the VP's actions with the President. Clearly, the two are meant to work together. Compare that relationship to Congress or the Supreme Court, where you'll find much disagreement and a fight for supremacy. It would not make sense to allow the Chief Executive Officer's best ally to also be a crucial figure in another branch!
Finally, some scholars who argue contra Cheney point out that in Amendment's 20 and 25, the succession order to the Presidency is laid out in such a way that it makes clear that the VP is an executive. He is next in line for the throne.
So why does any of this matter? Well it's simply bad policy. To allow the VP to assume more power than is alloted to him by the Constitution would violate both the spirit and text of the law of the land. It's also worth noting that the last eight years have seen a dramatic increase of the power of the Executive, a trend that would be exacerbated by this furtherance of VP power. I only hope the VP candidates do some research (for instance...reading the Constitution) on the duties and obligations one of them is about to incur.
~JSK
____________________________________
I can't say I generally disagree with what was said. Just a thought though. To me it seems like it was almost as if the creation of the Vice Presidency was an afterthought. When creating the system, it was obvious that some method of succession would be required in the case the President stepped down or died in office. So there was born the idea of the VP, to essentially be a backup. Then after creating a Senate where each state has two seats, by definition there has to a be an even amount of Senators. What does one do if there is a tie? Well lets give that VP guy that job; he doesn't really do anything else.
To the extent that the VP does have a hybrid role, it would not be a foreign concept to the Framers. It would fit well into a similar idea of what the Prime Minister in a Parlimentary system originally was intended to be; that being the King's (executive branch) representative in Parliment. This role of the PM in Britain had evolved considerably from its origins even by the time of the Framers, and perhaps this is why the powers of the VP are very few and the advisory role of the VP is very open ended and left undefined. I have no idea what the thought process was, but just a thought on the possible means of thinking.
-EJB
___________________________________________________________
That's a good point, EJB. I'm not entirely sure what the Framers had in mind either...but perhaps, given their knowledge of the PM position, the VP was designed to be something similar.
No real rebuttal here, but I wanted to link to this article.
The original Cheney quote is found within the article and it also highlights some of the dangers of this unprecedented expansion of VP power. Cheney, by claiming he is a member of the Legislature, can avoid any Executive orders that would apply to all other Executive members, be they agencies or individuals. Essentially, he is trying to avoid disclosure of VP secrets by annexing more power for his office. THIS is the danger, EJF. THIS is what is unprecedented.
~JSK
A Little Health Care Perspective
From FreeMarket Politics via mjperry:
"Dear UnitedHealthcare:
As you may know, health care coverage is now a right. Barack Obama said so in last night's debate. The purpose of this letter is to inform you that I have decided to stop paying monthly insurance premiums. I don't pay a dime for any of my other rights - life, liberty, pursuit of happiness, blah blah blah... - why should I pay you guys for health insurance? Of course, I expect you to continue to provide your services for me and my family. If you don't, I'll sue you. For violating my rights.
Best Regards,"
Genuinely funny, but it misses the mark. There are a few arguments, both explicit and implicit, bound together in this short paragraph, so let's try to unpack it and respond accordingly:
"Health care coverage is now a right. Barack Obama said so..." Here the author is implying that Mr. Obama simply created a right out of thin air. This is a fairly common argument employed by so-called "originalists" who abhor the idea that rights can expand concurrently with the evolving standards of society. Let me concede that it would be entirely fair and correct to argue that, in 1790, the Constitution did not mandate health care as we know it. Fortunately, we do not live in the late 18th Century. I would counter the originalist notion in two ways: first, normatively, it is perfectly logical (and solid political philosophy) to argue that one of the central functions of the State is to protect and preserve the lives of its citizens. It is part of the social contract we enter into and it is the consideration we receive in exchange for voluntarily relinquishing some freedoms. Today, basic health care is essential to preserving the lives and well-being of every citizen. Second, descriptively, constitutional scholars couch the government's obligation to provide universal health care in Article I, Section 8, Clause 1, specifically the "general welfare" language. Thus there are normative and practical reasons to support and defend Mr. Obama's policy.
"I don't pay a dime for any of my other rights..." This claim is true only in the sense that it is severely linguistically confused. The author confuses a right for an obligation. Rights are not synonymous with obligations - we do not have an obligation to vote simply because we have the right. Rights impose obligations on others. Thus, because I have a right to be free from bodily harm, you have an obligation not to harm me, and, consequentially, the State has an obligation to protect that right. Thus, those of us paying for health care are not "paying for our right" but are providing the means by which the State can carry out its obligations. That is what universal health care would do and you would, at that point, be free to stop paying for health care and rely on the State system. Many people, however, would choose to pay more for a better quality of health care; but again, this does not equate to "paying for a right," it would simply be an added degree of protection above and beyond the constitutional requirement - sort of like paying for private security. Speaking of which...
Now even if we were to agree that paying health care premiums entails "paying for a right," is it really true that such a situation is entirely unique? No it is not. We pay to fund State obligations every year through taxes. Our right to be free from bodily harm? Protected by police forces which are funded through taxes. Our right to an education (some courts hold this to be a fundamental right)? Provided for us by tax-funded public schools. We even have a constitutionally protected right to marry (see Loving v. Virginia and Zablocki v. Wisconsin). But it costs money to get a marriage license. So let us not pretend that we would be so outraged to have to "pay for a right," when it is so common as to go virtually unnoticed and unchallenged.
Finally, I would like to note that I realize that Mr. Obama is NOT advocating universal health care and I do not mean to imply such a case. Mr. Obama does, however, believe that health care is a right - whereas Mr. McCain does not. That is a key policy and philosophical distinction between the two campaigns.
~JSK
______________________________
I am glad that JSK realizes the satirical nature of the discussed quote. However, I wish to make two areas of argument as a critique of his analysis. I believe this comes down to two concepts. The first is the distinction between a positive right and a negative right. The second is the notion of a living vs. a static or originalist view of the Constitution (yes i know i just linked wikipedia, but its just so convenient). :)
In short, the difference between a positive and negative right is that positive rights impose obligations on others to do something, while negative rights oblige others to refrain from doing something. A negative right is the right from bodily harm (others must refrain from harming you), while a positive right would be healthcare (one must provide for you). This distinction is important because the Founding Fathers explicitly created a system designed to protect the prior and not the later. Continuing to stay with the Jefferson theme, he stated, “The legitimate powers of government extend to such acts only as are injurious to others" and again, “Laws provide against injury from others, but not from ourselves.” This notion is furthermore very clear in the Constitution and the Bill of Rights, where every right delineated within is the protection of a negative right. We have the right to bear arms; government cannot take them from us, but they do not need to provide them for us. The government cannot take your home by quartering troops in it, but it does not need to provide you with a home. We have the right to assemble, but government is not required to provide the forum for us to do so. In this part of the argument my counterpart agrees with me when he states, “Let me concede that it would be entirely fair and correct to argue that, in 1790, the Constitution did not mandate health care as we know it.”
He then makes the argument that the “General Welfare” clause in fact argues for such rights, even though he admits as previously quoted that healthcare was not perceived as a right. One, the term "welfare" had a different connotation at the time, meaning less to do with providing programs as we see it today and more to do with policies the promote the flourishing of society in general, for instance public works and laws to promote and protect commerce. But two, this only permits the government to do so; it does not require it to do so. This distinction is important. Personally, I do believe there is some role that government should play in healthcare, but I do not believe they are Constitutionally required to do so. I think stop lights are a good thing for state governments to put in place, but im pretty sure that no State Constitution mandates it. So he agrees that the original understanding of the Constitution did not require healthcare be provided.
Therefore, the entire point of contention then comes down to the idea of a living vs. static constitution. The living Constitution argument sees that its interpretations should evolve as society changes, where the static view sees that it should be interpreted by the “originalist” notion that JSK describes in a negative connotation. Now it is true that institutions must change with a changing society, but that is why the Founding Fathers placed a method via the amendment process to make allowance for this. JSK argues for this healthcare reasoning partially out of past case law that shows that there are indeed positive rights such as marriage, but these have largely been interpreted in the era of the Progressive court from the 30’s through 80’s which ruled within the living Constitution view (besides, marriage licenses are paid for through user fees, not by a third party through taxes). If the Founding Fathers had intended that the Constitution be “living”, why then place an amendment process? Would that then not be a useless provision? Furthermore, what is even the purpose of a Constitution in this case if it has no objective static meaning? Why have one at all if its meaning can be arbitrarily be changed by a very undemocratic of even unrepublican mechanism of unelected judges with virtually no checks on their power? As Jefferson said, "It [is] inconsistent with the principles of civil liberty, and contrary to the natural rights of the other members of the society, that any body of men therein should have authority to enlarge their own powers... without restraint."
-EJB
________________________________________
Alright, rebuttal time: I have to clear up some things here.
First, a hardy welcome to our friend NTC (I'll deal with you below.) But as for EJ's arguments, I was hoping he'd take it to the lengths that he did. First, he needlessly points out the distinction between positive and negative rights (a distinction which is not universally accepted throughout legitimate legal philosophies). Sure, I'm with you on that one. But "This notion is furthermore very clear in the Constitution and the Bill of Rights, where every right delineated within is the protection of a negative right." Really? Every right? Explain to me how the right to a trial by jury is a negative right? Must the State not not refuse us one? And the right to counsel? All of these are positive rights that the State MUST provide for us...they affirmatively impose an obligation on the State. So let's not pretend that the Founding Fathers did not value positive rights.
This leads me to my next point...this "originalism" v. "living Constitution" dichotomy. First off, in response to NTC, I did not set up a false dichotomy because I never said the two were mutually exclusive. In fact, the correct method of Constitutional interpretation is certainly somewhere in between both extremes (for as Aristotle said, "All things in moderation.") EJB bites on the supposed notion of mutual exclusion. He also chides me for implying the "negative connotations" associated with the term "originalism." Interestingly, he then condemns SEVEN whole decades of Supreme Court jurisprudence as being "Progressive," a term which is certainly pejorative. Well, I'm pretty glad our "progressive" Supreme Court decided such cases as Brown v. Board of Ed....but I suppose EJB would consider that decision improper and arbitrary because the Court was "progressive" and relied on the shift in moral culture to infer a right that had previously not been accepted! This is my response to NTC and EJB, who fear that a "living Constitution" would have no bounds! NTC asks "how are we to judge the evolving standards of society?" Well, with judges. It's in the name. And by and large, they get it right. What's nice about our judicial system is that it is self-regulating. Thus if the Court makes a misstep in evaluating the evolving standards of decency, it can overturn the decision in a later case. The process is far cleaner and more efficient than the amendment process.
Finally, I pose a challenge to EJ's backing of the "originalist" school of interpretation. If it is true that we can only look to the definitions and connotations of the Founding Fathers, does that mean that we should read the Second Amendment to protect ONLY our right to muskets, flintlocks and howitzers ("arms" as defined in 1790)? Clearly, this is absurd...the protections of the Second Amendment shifted with the evolving nature of our culture. It should not take a two-thirds majority of Congress to officially recognize that the Second Amendment protects semi-automatic handguns. Let's be honest..."originalists" fall into the very trap they set out to avoid. They say to those who disagree "We cannot interpret the Constitution in light of evolving standards of society because you'll simply create whatever interpretation that you want!" Yet, they turn around and interpret for themselves what the Founding Fathers would have done! Let us not pretend that definitions and philosophies were monolithic and universally accepted in 1790, just as they are not now! Look at the records of Congressional debates; they show truly that there were as many disparate opinions about what the terms of the Constitution meant then as there are now. Thus, all an "originalist" does is filter out the Founding Fathers he disagrees with and puts forward an interpretation that HE more readily agrees with.
And EJB, you may have missed the point of my marriage example. I never claimed that marriage licenses are funded by taxpayers. I simply mean that we pay for those licenses when we get married...which would technically mean we're "paying for the right." Otherwise, we could not get married and thus would be denied the right.
~JSK
"Dear UnitedHealthcare:
As you may know, health care coverage is now a right. Barack Obama said so in last night's debate. The purpose of this letter is to inform you that I have decided to stop paying monthly insurance premiums. I don't pay a dime for any of my other rights - life, liberty, pursuit of happiness, blah blah blah... - why should I pay you guys for health insurance? Of course, I expect you to continue to provide your services for me and my family. If you don't, I'll sue you. For violating my rights.
Best Regards,"
Genuinely funny, but it misses the mark. There are a few arguments, both explicit and implicit, bound together in this short paragraph, so let's try to unpack it and respond accordingly:
"Health care coverage is now a right. Barack Obama said so..." Here the author is implying that Mr. Obama simply created a right out of thin air. This is a fairly common argument employed by so-called "originalists" who abhor the idea that rights can expand concurrently with the evolving standards of society. Let me concede that it would be entirely fair and correct to argue that, in 1790, the Constitution did not mandate health care as we know it. Fortunately, we do not live in the late 18th Century. I would counter the originalist notion in two ways: first, normatively, it is perfectly logical (and solid political philosophy) to argue that one of the central functions of the State is to protect and preserve the lives of its citizens. It is part of the social contract we enter into and it is the consideration we receive in exchange for voluntarily relinquishing some freedoms. Today, basic health care is essential to preserving the lives and well-being of every citizen. Second, descriptively, constitutional scholars couch the government's obligation to provide universal health care in Article I, Section 8, Clause 1, specifically the "general welfare" language. Thus there are normative and practical reasons to support and defend Mr. Obama's policy.
"I don't pay a dime for any of my other rights..." This claim is true only in the sense that it is severely linguistically confused. The author confuses a right for an obligation. Rights are not synonymous with obligations - we do not have an obligation to vote simply because we have the right. Rights impose obligations on others. Thus, because I have a right to be free from bodily harm, you have an obligation not to harm me, and, consequentially, the State has an obligation to protect that right. Thus, those of us paying for health care are not "paying for our right" but are providing the means by which the State can carry out its obligations. That is what universal health care would do and you would, at that point, be free to stop paying for health care and rely on the State system. Many people, however, would choose to pay more for a better quality of health care; but again, this does not equate to "paying for a right," it would simply be an added degree of protection above and beyond the constitutional requirement - sort of like paying for private security. Speaking of which...
Now even if we were to agree that paying health care premiums entails "paying for a right," is it really true that such a situation is entirely unique? No it is not. We pay to fund State obligations every year through taxes. Our right to be free from bodily harm? Protected by police forces which are funded through taxes. Our right to an education (some courts hold this to be a fundamental right)? Provided for us by tax-funded public schools. We even have a constitutionally protected right to marry (see Loving v. Virginia and Zablocki v. Wisconsin). But it costs money to get a marriage license. So let us not pretend that we would be so outraged to have to "pay for a right," when it is so common as to go virtually unnoticed and unchallenged.Finally, I would like to note that I realize that Mr. Obama is NOT advocating universal health care and I do not mean to imply such a case. Mr. Obama does, however, believe that health care is a right - whereas Mr. McCain does not. That is a key policy and philosophical distinction between the two campaigns.
~JSK
______________________________
I am glad that JSK realizes the satirical nature of the discussed quote. However, I wish to make two areas of argument as a critique of his analysis. I believe this comes down to two concepts. The first is the distinction between a positive right and a negative right. The second is the notion of a living vs. a static or originalist view of the Constitution (yes i know i just linked wikipedia, but its just so convenient). :)
In short, the difference between a positive and negative right is that positive rights impose obligations on others to do something, while negative rights oblige others to refrain from doing something. A negative right is the right from bodily harm (others must refrain from harming you), while a positive right would be healthcare (one must provide for you). This distinction is important because the Founding Fathers explicitly created a system designed to protect the prior and not the later. Continuing to stay with the Jefferson theme, he stated, “The legitimate powers of government extend to such acts only as are injurious to others" and again, “Laws provide against injury from others, but not from ourselves.” This notion is furthermore very clear in the Constitution and the Bill of Rights, where every right delineated within is the protection of a negative right. We have the right to bear arms; government cannot take them from us, but they do not need to provide them for us. The government cannot take your home by quartering troops in it, but it does not need to provide you with a home. We have the right to assemble, but government is not required to provide the forum for us to do so. In this part of the argument my counterpart agrees with me when he states, “Let me concede that it would be entirely fair and correct to argue that, in 1790, the Constitution did not mandate health care as we know it.”
He then makes the argument that the “General Welfare” clause in fact argues for such rights, even though he admits as previously quoted that healthcare was not perceived as a right. One, the term "welfare" had a different connotation at the time, meaning less to do with providing programs as we see it today and more to do with policies the promote the flourishing of society in general, for instance public works and laws to promote and protect commerce. But two, this only permits the government to do so; it does not require it to do so. This distinction is important. Personally, I do believe there is some role that government should play in healthcare, but I do not believe they are Constitutionally required to do so. I think stop lights are a good thing for state governments to put in place, but im pretty sure that no State Constitution mandates it. So he agrees that the original understanding of the Constitution did not require healthcare be provided.
Therefore, the entire point of contention then comes down to the idea of a living vs. static constitution. The living Constitution argument sees that its interpretations should evolve as society changes, where the static view sees that it should be interpreted by the “originalist” notion that JSK describes in a negative connotation. Now it is true that institutions must change with a changing society, but that is why the Founding Fathers placed a method via the amendment process to make allowance for this. JSK argues for this healthcare reasoning partially out of past case law that shows that there are indeed positive rights such as marriage, but these have largely been interpreted in the era of the Progressive court from the 30’s through 80’s which ruled within the living Constitution view (besides, marriage licenses are paid for through user fees, not by a third party through taxes). If the Founding Fathers had intended that the Constitution be “living”, why then place an amendment process? Would that then not be a useless provision? Furthermore, what is even the purpose of a Constitution in this case if it has no objective static meaning? Why have one at all if its meaning can be arbitrarily be changed by a very undemocratic of even unrepublican mechanism of unelected judges with virtually no checks on their power? As Jefferson said, "It [is] inconsistent with the principles of civil liberty, and contrary to the natural rights of the other members of the society, that any body of men therein should have authority to enlarge their own powers... without restraint."
-EJB
________________________________________
Alright, rebuttal time: I have to clear up some things here.
First, a hardy welcome to our friend NTC (I'll deal with you below.) But as for EJ's arguments, I was hoping he'd take it to the lengths that he did. First, he needlessly points out the distinction between positive and negative rights (a distinction which is not universally accepted throughout legitimate legal philosophies). Sure, I'm with you on that one. But "This notion is furthermore very clear in the Constitution and the Bill of Rights, where every right delineated within is the protection of a negative right." Really? Every right? Explain to me how the right to a trial by jury is a negative right? Must the State not not refuse us one? And the right to counsel? All of these are positive rights that the State MUST provide for us...they affirmatively impose an obligation on the State. So let's not pretend that the Founding Fathers did not value positive rights.
This leads me to my next point...this "originalism" v. "living Constitution" dichotomy. First off, in response to NTC, I did not set up a false dichotomy because I never said the two were mutually exclusive. In fact, the correct method of Constitutional interpretation is certainly somewhere in between both extremes (for as Aristotle said, "All things in moderation.") EJB bites on the supposed notion of mutual exclusion. He also chides me for implying the "negative connotations" associated with the term "originalism." Interestingly, he then condemns SEVEN whole decades of Supreme Court jurisprudence as being "Progressive," a term which is certainly pejorative. Well, I'm pretty glad our "progressive" Supreme Court decided such cases as Brown v. Board of Ed....but I suppose EJB would consider that decision improper and arbitrary because the Court was "progressive" and relied on the shift in moral culture to infer a right that had previously not been accepted! This is my response to NTC and EJB, who fear that a "living Constitution" would have no bounds! NTC asks "how are we to judge the evolving standards of society?" Well, with judges. It's in the name. And by and large, they get it right. What's nice about our judicial system is that it is self-regulating. Thus if the Court makes a misstep in evaluating the evolving standards of decency, it can overturn the decision in a later case. The process is far cleaner and more efficient than the amendment process.
Finally, I pose a challenge to EJ's backing of the "originalist" school of interpretation. If it is true that we can only look to the definitions and connotations of the Founding Fathers, does that mean that we should read the Second Amendment to protect ONLY our right to muskets, flintlocks and howitzers ("arms" as defined in 1790)? Clearly, this is absurd...the protections of the Second Amendment shifted with the evolving nature of our culture. It should not take a two-thirds majority of Congress to officially recognize that the Second Amendment protects semi-automatic handguns. Let's be honest..."originalists" fall into the very trap they set out to avoid. They say to those who disagree "We cannot interpret the Constitution in light of evolving standards of society because you'll simply create whatever interpretation that you want!" Yet, they turn around and interpret for themselves what the Founding Fathers would have done! Let us not pretend that definitions and philosophies were monolithic and universally accepted in 1790, just as they are not now! Look at the records of Congressional debates; they show truly that there were as many disparate opinions about what the terms of the Constitution meant then as there are now. Thus, all an "originalist" does is filter out the Founding Fathers he disagrees with and puts forward an interpretation that HE more readily agrees with.
And EJB, you may have missed the point of my marriage example. I never claimed that marriage licenses are funded by taxpayers. I simply mean that we pay for those licenses when we get married...which would technically mean we're "paying for the right." Otherwise, we could not get married and thus would be denied the right.
~JSK
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