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Friday, January 13, 2012

Health Care and the Constitution

I am spending a long weekend at an academic conference on the judicial thinking of the early Republic--not my specialty, of course, but as you all know, there's very little political history I can't get interested in. The conferees include academics and lawyers and represent a very broad spectrum of opinion, and at lunch today we got into a big argument about the health care law, which many of today's conservative intellectuals feel must be declared unconstitutional so as to put some limit on governmental power. Several of them believe that health care, like everything else, should be left to market forces. It has set me thinking on a number of levels.

To begin with, for the conference we have read the opinions of Jefferson and Hamilton on Hamilton's First US Bank, which Hamilton persuaded Washington to approve. That was an interesting argument because it showed Hamilton to be clearly in favor of the modern liberal position about government: that it should exercise its powers to promote the public good. The argument turned on the clause giving the Congress the power to pass laws "necessary and proper" to carry out its enumerated powers, which included, of course, raising taxes and borrowing money. Jefferson (and Madison, in Congress) took a very strict and suspicious view of this clause, arguing that since the government could borrow money without a national bank, it was not necessary, and thus, not allowed by the Constitution. Hamilton on the other hand argued that the national bank would be able to borrow more cheaply and efficiently, thus contributing to the nation's financial health and prosperity, and that this was more than enough to make it "necessary and proper" to the carrying out of the government's enumerated functions.The great arguments over New Deal legislation were not all that different, and the argument over the health care law isn't either.

At bottom, that argument comes down to one's view of government: is it a necessary evil whose functions must be as limited as possible, or is it potentially an engine of good, which can increase the security, the prosperity, and yes, even the liberty of its citizens? Jefferson, the Republicans of the Gilded Age, 20th-century Southern Democrats (for the most part) and the modern Republican Party hold the former view; Hamilton, the two Roosevelts, Wilson, Truman, Kennedy and Johnson held the latter. The question that we spent some time on was whether the Constitution takes sides in this debate, and it is my firm belief that it does not. The "necessary and proper clause" allows for either interpretation, and thus guarantees in practice that the people and their elected representatives will interpret it according to their beliefs, the particular situation they face, and the distribution of political power at any particular moment. That has been the essence of our democracy for more than 200 years and it so remains, even though I regret to say that my side of the argument seems to be losing at the moment.

As for health care, I have begun to think that we shall never make real progress until we clearly define it not as a consumer good, but as a public necessity. We accept that we cannot use the market to provide us with an army and navy, or police forces, or roads and bridges, and thus in theory at least we try to provide those things with maximum efficiency and with the lowest cost. When we view health care in the same way--as something necessary both to individuals and to society as a whole--we will be able to make a whole series of difficult decisions relatively easily. Whether we will be forced into that decision any time soon I do not know. I am sad that President Obama did not take this aspect of the question on.


Anonymous said...

The health care debate is interesting. Conservatives fear that further government intervention in health care will make access to quality care more difficult for the average person although it would make care accessible to those who currently have no insurance. The doctors that I know already complain vigorously about all the paperwork associated with Medicare and Medicaid. I know many will not accept Medicare patients. However, the argument being used to try and revoke Obamacare, the requirement that all be insured, seems like the part of the program they would like. It is actually a bit regressive because most of the people who wouldn't buy insurance are free riding on the backs of all the other users of medical facilities. When someone is provided treatment who can't pay, the institution who provided the care must somehow recoup that cost and it is usually in the form of higher rates to all other paying users. Requiring all citizens to have insurance would at least get these people to contribute to their own costs.

One of the troubling aspects of government intervention into health care is that we risk taking away the profit incentive that has driven the innovations of modern medicine (medicines, machines, procedures, etc). It is interesting that most of the socialized health systems around the world are the beneficiaries of American medical innovation and provide very little innovation themselves (except perhaps better administration). Just as we subsidize much of the world's defense, we also subsidize their public health systems. Would US participation in a Canadian style health system stymie medical innovation? Are we advanced enough that it wouldn't matter? I fear it will be a long and arduous road to health care reform.

Anonymous said...

Here is an interesting article about the high risk health pools:


Anonymous said...

Your view and thoughtful and insightful analysis
notwithstanding it is quite clear that the individual
mandate is unconstitutional as a matter of law.

Plain and simple.

Ed said...

Again, you are making the common mistake of treating Obamacare as government provided healthcare, or even a highly regulated system where the insurers are essentially utilities. Whatever the new health care legislation envisages, it is neither of those.

Also, most of the claims (and yes, they come mostly from the American right) that Obamacare is unconstitutional focus on the individual mandate. The government requiring people to purchase goods from private companies, which is what the mandate is, probably is unconstitutional. Its also fairly unique. I don't think the claim is either that the federal government can't regulate health care or provide it directly, since it has been doing both for several decades.

Anonymous said...

strange how freedom is so important in America and is so praised elsewhere that people are free to get rich there. Mostly ignored is the freedom to die in abject poverty if you are not rich, corrupt and well connected. I suppose most people will just die as incomes fall and medical costs in America rise 10% or more per year. How can people pay double the costs every 7 years for simple operations. The next generation will just die, i.e. an ever larger portion of thepopulation will be cutoff from medical treatment until only a few rich people have a doctor at thier private meidcal retreat on some island protected by high security. In these terms I think that the loss of freedom not to have universal medical is a good deal long term.

Larry Koenigsberg said...

it is quite clear that the individual mandate is unconstitutional as a matter of law.

That statement is worthless. Eminent jurists are divided on the question, so it is quite obviously not clear. Ultimately, the Constitution means whatever a majority of sitting Justices say it means: segregation is constitutional, and then no it's not; minimum wage laws are not constitutional, and then yes they are.

One thing is certain: the conservative majority on the court will continue to rule in favor of Republican Party positions regardless of how much they have to twist their "original intent" or "stare decisis" doctrines to do so.

Ray C Neill said...

I am disappointed that your effort this week, albeit brief, did not spark a greater response. It has been my experience that the topic of universal health care in America is one of the most polarizing issues that often emphasizes the deep divide between Republican and Democrat , rich and poor. Invariably the main arguments are that health care is unconstitutional, unaffordable and socialistic. As you have indicated, constitutional lawyers enjoy lively discussions and billable hours on the matter while arguing both sides. Meanwhile, almost fifty million Americans will be without medical coverage and approximately 20,000 will die yearly because of this. Hardly a huge number compared to the total population until you consider that it is equivalent to well over 150 Airbus-320 crashes or six 911 disasters each and every year. In his inaugural speech, John Kennedy asked the American public to, " Ask not what your country can do for you.... " It was well meaning jingoism ( likely lifted from Oliver Wendell Holmes) with an implication that the government is somehow different from the people. From this we could argue that the Constitution is a contractual agreement between the government and the people and, if so, the government in violation of that contract by failing to provide adequate protection of unalienable rights ? Great stuff for lawyers isn't it ? And from there the issue will enter the black-hole of discussion from which no good idea has ever emerged and it will never be seen again.
Samuel Johnson, the British essayist, said, " Nothing will ever be attempted if all possible objections must first be overcome." At the expense of many, the leading pharmaceuticals, insurance companies, the A.M.A. etal are all hoping that Johnson was right.
Ray C. Neill

Thomas said...

I don't read Prof. Kaiser's post to be an unfettered endorsement of "Obamacare." I don't think it's even really about "Obamacare."

Rather, the mention of the current health care act is merely an entree to the overall thesis of whether Government is a problem to be minimized, or a means by which the good of all might be enhanced. Health care remains a problem, even now. Some aspects may well have been improved for many (or even most) Americans as a result of "Obamacare", but the fixes are only partial (ONLY IF one is willing to concede that linking health care to employment is problematic - not least for those who don't happen to have jobs).

This was a very thoughtful post, and certainly provoked thoughts of my own. Many thanks, Prof. K. And cheers to Mr. Neill, because I always enjoy references to Samuel Johnson!

David Kaiser said...

Thomas, above, is right, obviously. The post couldn't be endorsing the President's health plan, because it's completely within the framework of the present insurance system treating health care as a commodity. But to the Republicans who comment here (politely enough to be published, may I say), "Obamacare" is mainly the thing with which they hope to defeat Obama, period.

Publion said...

Several thoughts come to mind.

The Role-of-the-Government Question is a difficult and geologically complex amalgam of issues and historical events that affected conceptions.

FDR’s ‘Four Freedoms’ – outlined in the 1941 State of the Union Address – were, to my mind, a key moment. The first two Freedoms – of Speech and of Religion – were well within the power of any government, including the US government under the Constitution, to guarantee.

But then the second pair of Freedoms – from Fear and from Want – were something else altogether. What earthly government could possibly make such guarantees? What sort of polity or regime would it take to make good on such guarantees? If a government now wanted to take on a ‘war’ (actually, that trope didn’t come into wide public usage until JFK and especially LBJ) like that, how would it have to engorge itself, even in such a ‘well-intentioned’ and ‘good’ cause?

If the US government were committing itself basically to eradicating what had in all prior human history been considered perennial human problems, then would it mpt need the omniscience (and omnipotence) of the Deity to do so?

The Framers’ Vision, it seems to me, was simply to provide a basic governing apparatus by which a civil Society and Culture and Citizenry could conduct that broad range of affairs that were (at that time imagined to be) beyond the realm of governmental activity.

From a contractual point of view, can it be asked if FDR began a thread that essentially changed the terms of the original Contract between People, States, and National Government?

But beyond the Separation of Powers that, through the tensive relationships among the Branches, provided the ‘checks and balances’ that would help prevent ‘stampedes’ from developing and overwhelming the political machinery, the Framing Vision that informed the Constitution itself provided for The People, who would be the ultimate governors of their own government (through their elected representatives usually, but always on the presumption that there was a three-way circuit of unity comprising representatives, Citizens, and a common consensus on the value of the Constitutional Method and Machinery for proceeding through History.

If the intensifying complexities of the Industrial and Corporate Age (to which Teddy Roosevelt tried to respond) created stresses, they were still not stresses beyond the capacity of the Constitutional platform to manage.

(Comment continued below)

Publion said...

Presuming that tripolar unity mentioned above, then the American polity – based on that Framing Vision as given technical and partial embodiment in the Constitution – could make its way through such increasingly heavy seas and weather as might be encountered as time went on.

However, with the Democrats’ post-1968 adoption of the Marxian vision and its analysis and prescriptions, its Content and Method – as re-jiggered first by Gramsci and the later era of Eurocommunists like Mouffe and the Frankfurt School, and then imported by the Beltway here as the most cutting-edge thought of Radical Feminists like MacKinnon – then the Framing Vision of 1787 was for all practical purposes abandoned, replaced by what is a quintessentially Marxian ‘vision’ (which does not deserve capitalization, in my book).

When to FDR’s vast if simple expansion of the government’s writ in 1941, we add the truly stunning adoption of the Marxist-Leninist ‘vision’ in Content and especially Method since about 1971 (although it has for so long been spun as creative and cutting-edge and fresh political thinking), then clearly – and as Gramsci prescribed – American political conceptions and political confidence are now greatly compromised and hugely confused.

In the beginning this was due more to the duplicity of the Beltway in not naming this rather profound change for what it really was. But as the past four decades or more have rolled on, the Citizenry’s own competence to conduct intelligent discourse (about a subject on which they are not only under-informed but deeply misled) has also degraded significantly.

And the vanguard-elitism of Lenin and Gramsci has joined the native American strain of Progressive elitism from the early 20th century to create a lethally toxic potential which ensuing decades have done little to neutralize or manage.

The originalist-vs-‘living constitution’ fracas at the Supreme Court is essentially nothing more than a sly magician’s trick, distracting attention from the real dynamic involved: i.e. neither Left and putatively ‘liberal’ nor Right and putatively ‘conservative’ have any use for “deliberative democratic politics”, which is the mainstay of the Framing Vision.

I have been working my way through these matters on the Chez Odysseus site, especially in recent Posts about Brzezinski, Justice Brennan, Catharine MacKinnon, Antonio Gramsci, Chantal Mouffe and Jurgen Habermas, and most recently John Updike’s last novel, “The Terrorist”.

David Kaiser said...

Dear Publion,

Let me make a few brief responses.

1. You are welcome to believe that the government has no role in promoting our economic well-being, but the idea that none of the founders had that idea is simply wrong. If you read Hamilton's opinion for Washington on the U.S. Bank you will find clear evidence that he wanted a robust government role to promote economic activity--and since Washington accepted his opinion, it seems that Washington did, too. This is my whole point. You can maintain free-market absolutism, please don't falsify history by claiming that it's the only constitutional position.

2. Modern feminism as pushed by people like MacKinnon has nothing whatever to do with Marxism. Marxism-Leninism is distinguished by a single party directing all the affairs of society and by government ownership of the means of production. Neither of those has arisen in the US since 1970 or any other time.

There are no arguments going on about public policy that do not have ample precedents throughout American history. They are arguments about policy within the framework of the Constitution, and that is how we should treat them.

Publion said...

Let me say this about that.

I don’t at all deny Hamilton or his insistence – and rightly – on the national government’s role in promoting commerce and smoothing the path of robust economic activity, interstate and foreign.

However, more recent use of, say, the Commerce Clause to justify all manner of government intrusion, presents far more complex problems: think of 1942’s ‘Wickard v. Filburn’ where it was upheld that the government could tell a farmer he could not grow food crops to feed his family.

What concerns me is not Hamilton’s acute and logical aliveness to the possibilities and necessities of national government for enhancing the economy, which I do not deny.

My concern is that the Framing Vision’s insistence on the role of the Citizenry and collectively as The People has been increasingly undermined – by, inter alia, the complexity of 19the century corporatism and industrialism, the Progressive elitism of the early 20th, and – I steadfastly maintain – the profound threats posed by post-1968 political developments here.

In regard to those last, I cannot escape coming to the conclusions I have made; surely MacKinnon’s “Towards a Feminist Theory of Politics” (1989, though she says she had been working on the ideas of the relationship of feminism and Marxism since 1970 or so) establishes that: she crows that while Marx was good, his ‘economic’ definition was insufficient and she proceeds to substitute Gender for economics and for ‘proletariat’ and, like Julia Child in kitchen on camera, discusses it with us as she does it.

Ditto Mouffe whose theory of “radical democracy” has no need whatsoever for a “deliberative democratic politics” (her 1985 summa “Hegemony and Socialist Strategy: Toward a Radical Feminist Politics” rather clearly lays it out).

Further, her concept of “antagonisms” between groups in the service of their own agendas (as opposed to any balancing sense of the commonweal) as absolutely essential to her “radical democracy” goes quite some way toward a) explaining the lethally fractalizing effect of Identity Politics as it has evolved here and b) demonstrating the use of Gramsci’s ‘war of positions’ as he outlines the way to undermine a “hegemonic” and “oppressive” (his terms, not feminism’s) Culture in service of the “marginalized” (ditto).

Please be assured that I am not ‘going for the rhetorical’ or the ‘demagogic’ – nor for the bloggy Explosive Assertion – when I use the term “Marxian” (I specifically rejected not only ‘Communist’ but even the suitably accurate but too emotionally-freighted “Marxist”).

But it seems rather undeniably clear to me that – especially as re-jiggered by MacKinnon from Mouffe, who was clearly adopting Gramsci, who was simply trying to refine Marx and Lenin for more effective deployment in and against the West – there is a fundamental unity of destructive (or “deconstructive” to borrow the term from French Leftist literary Theory) Purpose and Method against the ‘dominant, oppressive, hegemonic’ Culture of the West and – with MacKinnon and her ilk – of the United States.

And by eschewing any use for ‘democracy’ or “deliberative democratic politics” (Lenin, Gramsci, Mouffe, and MacKinnon) then – willy or nilly – Gramsci’s filched revolutionary musings are from a most Alien political Universe indeed – hence the almost incomprehensible collapse of our politics and political discourse over the past 40-plus years.
I go into much greater length about all of this on my site.

Be assured I would not waste anybody’s time with ill-considered poppings off the top of my head.

If a moment's reflection on my conception of matters leads to jaw-dropping thoughts about US politics and the Constitution in recent history, then be assured I was just as shocked when I began to connect the dots.

Thus, let us continyuh, to borrow a phrase.

David Kaiser said...

To Publion and others of like mind, I shall say this once more, then desist.

Hamilton has in one sense been proven right, because at various different moments in our history our forefathers have asserted and exercised broad powers under the Constitution. They have passed laws, such as laws to restrict the growth of crops to raise prices so that farmers would not starve, and the courts have, more often than not, sustained them. Now the trend is running heavily in the other direction and we have to live with that. But I shall always think that we will do much better as a society if we recognize the latitude provided by the Constitution and argue about policy, rather than claiming that we are bound to one particular vision of what the founders intended--a version which even many of them did not in fact subscribe to. The Constitution allows us to make many decisions on our own and act like grown-ups. Let's give it a try.

Publion said...

I completely concur with DK's desire to say the say and then desist from going around and around. I don't want to contribute to this excellent little site becoming a bloggy sniping match.

I will therefore and happily say one more say in this Comment and I will also leave off the matter.

I concur with DK's thoughts in re Hamilton. And with the flexibility of those broad powers accorded to the Congress in the Constitution's machinery.

My concern in that specific matter is this: Given the past 4.5 decades of Gramscian assault, two bad things have happened which undermine the Constitutional machinery.

First, the role of The People in a "deliberative democratic politics" has been thoroughly sidestepped by both Left and then Right. Thus all of current 'politics' is actually a (staged?) brouhaha between "the interests" (both Big Advocacy from the Left and Big Money from the Right; the National Nanny thrust and the National Security thrust)and this is all waged over the heads of The People, who are relegated to a spectator role at best.

Second, given the necessity of politicians to do 'deal politics' as a direct consequence of the otherwise impossible tensions posed by the fundamental Stance of Identity Politics (and their indenture to Big Money through Tip O'Neill's PACs erected in the early 1970s) then the elected reps of The People are now trapped into pandering to their 'deals' rather than remaining forthrightly in touch with The People.

It is thus profound derangement, in my opinion, that has undone Our political competence and maturity.

Frankly, I believe the Constitution and the Framing Vision leave much much room for later generations' adaptations, so long as the genuine "deliberative democratic process" that unites The People, the pols, and the Sovereign Authority, is kept vital and robust.

But if the unsleeping power of Big Money influence is bad it is still a cat that was belled during the First Gilded Age (at the latest).

But the Left version of that has yet to be recognized: if the majority "just don't get it" then those lumps must be sidestepped by the courts and by the backroom 'deals' of Deal Politics.

That said, I only hope that I have shed more light and apologize to all for any excessive 'noise'.

Let us continyuh!