Tuesday, August 07, 2012

"For you, the day the Supreme Court graced your health care was the most important day of your life. But for me, it was Tuesday."

While I'm far from happy about the Supreme Court's decision affirming the federal government's right to force people to buy the products of insurance companies, I can't say I agree with the emphasis so many people unhappy with the decision have placed on it. Not because the insurance mandate isn't awful- it certainly is- but because I just don't see the Supreme Court's decision upholding the mandate as constitutional as anything more than business as usual.

Yes, it's true that giving the federal government the power to force people to engage in a particular business transaction is a new usurpation of unconstitutional authority that makes a mockery of the idea of a government with limited powers restrained to the modest role defined for it in the Constitution. Which is bad, but at this point but it's sort of like a single bullet from an entire magazine that someone just emptied into you- it's always better to have fewer 5.56mm holes in your chest rather than more, certainly, but if there's already 29 of them it's a bit silly to curse the 30th as the one that killed you.

Thus, while I certainly don't think the mandate is constitutional- if we're defining “constitutional” according to that document's text- I find the arguments of its more mainstream opponents against its constitutionality uncompelling. Much was made by some critics of the mandate of the fact that the mandate compels a person to actively engage in commerce, rather than regulating or forbidding commerce that already exist. As much as I oppose their premises, I actually agree with liberal defenders of the mandate that this distinction is meaningless hairsplitting.

Yeah, forcing people to buy the products of private firms is not a power the federal government has previously had, or one the Constitution suggests that it has. So what?

Think about the state of constitutional government prior to this. The United States was already a country where the power to take private property “for public use” encompasses taking people's homes and giving them to private developers, where growing food on your own land to eat in your own home on that land can be regulated as “interstate commerce,” where forcing men from their and homes against their will and making them serve in the military at gunpoint is not “involuntary servitude,”where the Fourth Amendment doesn't apply in the presence of an internal combustion engine, and where neither seizing someone's property because the police suspect them of a crime and requiring them to prove their innocence to get it back nor imprisoning thousands of people not convicted or even suspected of any crime because their ancestors were born in the wrong country are incompatible with the Constitution's guarantee of the right to trial by jury and due process of law.

The idea that the federal government is limited to doing the things the Constitution says it can do has been a joke since my grandfather's time. Even the much weaker claim that the government can't do things the Constitution explicitly says it can't do is shaky under even the best circumstances, and things are seldom at their best.

I don't think a strictly limited state with powers narrowly constrained by a constitution that actually stays that way is plausible; that's one of the major reasons I'm an anarchocapitalist. (The monopoly state is necessarily the judge of its own cases, and so is bound by it's constitution largely to the extent that those who wield its power want it to be bound, and the people most motivated to pursue that power are those who want to use it.. Things like separation of powers can ameliorate the problem, but don't come close to eliminating it; the only thing that could would be a governing class free of the self-interest and hunger for power over others endemic in the human race that supposedly makes the state an indispensable protector for society in the first place.) You needn't share that general perspective to accept my point in this post, however; even if I had more confidence in the general idea of constitutional limits as a way to hold governments in check, however, I'd still have very little in the ability of the Constitution we actually have to serve as a restraint on the government we actually have.

It's a mistake to think of all the ways that the US government violates the Constitution as merely a concatenation of individual usurpations, because once they're as numerous as they now are the whole becomes something more than the sum of its parts. They cease to be exceptions to the general rule and become examples of it. The fact that the government has claimed yet another power it's not supposed to have does little damage to the Constitution at this point, because periodically claiming new powers it's not supposed to have is itself well-established as an accepted, normal government power. Whether it uses that power to pretend that the Constitution authorizes it to compel the purchase of a product or forbid it is an administrative detail. Whether the ostensible justification is the power to regulate commerce between the states or the power to tax, likewise.

Now, I can understand why the decision to uphold the mandate might be a breaking point for some libertarians or strict constitutionalist conservatives who already abhorred the extent to which the government has expanded, but who had previously retained greater hope than I for a return to significant constitutional restraints on state power. Precisely which straw turns out to be the one that breaks the camel's back will vary from person to person, and given the noxiousness of the mandate as a policy I can understand why it would be worth at least two or three straws for many.

You can- and some people, mostly libertarians, have- make a much sounder argument that the mandate is unconstitutional by arguing that the federal government is supposed to be constrained to a set of very limited powers specifically assigned to it in the Constitution that does not include making people buy insurance. You'd be right, for whatever that's worth.

However, the most numerous and prominent critics of Obamacare, mainline conservatives, can't make that argument without attacking the things they themselves dear. That's likely a big part of the reason so much argument hinged on whether the power to compel commercial activity fell within the power to ”regulate” it- opponents of the mandate could argue that it doesn't without calling the scope of the government's power in general into question.

(There's a purely practical reason to make such an argument, to be sure- it might convince people for whom a more radical one would be a nonstarter- but for the most part I've seen no reason to believe that the average person treating the distinction as important is merely pretending to do so. Hypocritical in some cases, perhaps, but that doesn't necessarily mean being insincere.)

The typical conservative cannot strike wholeheartedly at Obamacare for fear of wounding himself in the process. Conservatives have to insist that acceptance of the mandate is a significant new leap in the unconstitutional powers of the federal government because if it isn't they're left with two possibilities, both unpalatable. Either the mandate and Obamacare more generally are constitutionally legitimate, or a huge part of the existing government isn't. The latter is something most conservatives, whatever their rhetorical pretensions, recoil from.

The Constitution that denies the federal government the power to control or mandate health insurance also contains no warrant for that government to hand out Social Security and Medicare, or impose the vast interventionist regulatory state that conservatives in actual practice typically support no less than liberals, or give welfare to farmers, or control lewd content on TV or the Internet, or throw drug users in prison. Someone who endorses at least some of those things has little standing to declare that THIS is the moment that the federal government's disdain for the Constitution has finally gone too far, when he accepts or outright endorses all sorts of equally dubious laws. If the Constitution authorizes the federal government to pull new powers out of its ass to deal with alleged threats to the nation's welfare, it's no encroachment on the Constitution when the federal government does just that- regardless of whether the “threat” is people without insurance or drug users or people cussing on network television. Many conservatives like to quote Gerald Ford's remark that “A government big enough to give you everything you want is a government big enough to take from you everything you have,” but very few of them take it very seriously because they want so very much.

The Supreme Court's upholding of the insurance mandate is worth lamenting for the attack on liberty and human well-being that it represents, but as a blow against the idea of limited government constrained by the Constitution it means very little. You can't hurt what's already dead.

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