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Saturday, January 29, 2011

What Do You Think?

For blogs, I try to find and read a set that are written by persons very different from me who have a radically different perspective. There is no doubt that as you get older your learned solutions tend to dominate your worldview. In some ways, this makes you more effective. In some ways, it can hamstring you.

One of those I read for this purpose is Althouse.

I noticed a post on Ann Althouse's blog about the recent WI debate over the constitutionality of the individual mandate in health care reform. I had first read of it on Volokh. You can see a video of the debate here.

Ann attended the debate, and wrote a post about it that surprised me:
One lawyer haughtily informed me that whatever law professors might think about the Constitution, it's really all politics, and this health care reform represents a big, important political effort and that's why it's going to be upheld in the courts. I said, if it's all politics, then what of all the politics pushing back against the law? What about the polls that show most people are against it and what about the last election? If you're going to say politics determines the outcome, then don't you have to take that politics into account too? The lawyer looked either alarmed or angry, because I, a law professor, didn't simply assert that the Constitution matters, which would have made it easy for him to irritatingly chuckle about naivete.
Then she posts about the debate:
Richards was having none of this abstract rule-of-law business. Economic realities should trump legal jargon, he said. He portrayed constitutional law a matter of technical conceptions that shouldn't be allowed to stop government from doing the things that need to be done.
I was rather stunned at the conception of the law that Ann presents as predominating in the audience and being well represented in the debate.

If law doesn't matter at all, then why bother with it? And if the Constitution doesn't mean anything, what is the function of the Supreme Court anyway? And what are the long-run chances that an institution like the Supreme Court would effectively rule itself out of business? I know that Breyer's active liberty conception makes sense to him, but but if his logic were truly followed, there would either be no need of the Supreme Court or the Supreme Court would be the last arbiter of the legislative process, thus negating a representative form of government.

From the Wikipedia link above:
In it, Breyer urges judges to interpret legal provisions (of the Constitution or of statutes) in light of the purpose of the text and how well the consequences of specific rulings will fit those purposes. The book is considered a response to the 1997 book A Matter of Interpretation, in which Antonin Scalia emphasized adherence to the original meaning of the text alone.[18][29]

In Active Liberty, Breyer argues that the Framers of the Constitution sought to establish a democratic government involving the maximum liberty for its citizens. Breyer refers to Isaiah Berlin’s Two Concepts of Liberty. The first Berlinian concept, being what most people understand by liberty, is "freedom from government coercion;" Berlin termed this negative liberty and warned against its diminution. Breyer terms this "modern liberty." The second Berlinian concept — to Berlin, "positive liberty" — is the "freedom to participate in the government;" In Breyer's terminology, this is the "active liberty," which the judge should champion. Having established this premise of what liberty is, and having posited the primary importance of this concept over the competing idea of "Negative Liberty" to the Framers, Breyer argues a predominantly utilitarian case for judges making rulings that give effect to the democratic intentions of the Constitution.
This is essentially the same logic used in various governments that abruptly stopped following their own law; the same logic, for example, used by the SC that permitted the internment of the Japanese in WWII.

The second problem with Breyer's reasoning, IMO, is that there is a reality/utility test incorporated in the SC's assessment of "how well the consequences of a particular ruling will fit those purposes". This really mandates that the SC judge all sorts of things that they have no ability to judge.

For example, the health care legislation has huge fiscal flaws. The first is that many individuals and small businesses will not be able to afford insurance of the type mandated under the law. Therefore they will not buy it, no matter what the law tells them to do. This will shift far more of the cost burden onto the government than theorized. The second is that many states simply cannot afford the Medicaid spending mandated. Therefore they will not do it. No money, no coverage.

The last, and most serious flaw, is that the cost-shifting in the law is all onto individuals and small businesses. Because Medicare and Medicaid frequently do not pay enough to cover drugs and services covered, health care providers and medication providers charge more to privately insured and uninsured patients to cover the difference. A huge expansion of Medicaid combined with the very large demographically-indicated expansion of Medicare coverage will force private premiums way up, which will additionally push a lot of persons out of coverage.

The fiscal impossibility of the law is already emerging in the exemption process. The only way, under the law, to avoid the fiscal crash is to radically cut Medicare coverage. And when I write "radically", I mean as in "lethal injections". There is a special provision of the law which treats expenditures under Medicare differently than all other expenditures - there's a special panel, and it will recommend coverage changes to limit Medicare's growth. This is a huge legal change.

De facto, Medicare reimbursements are now determined by whether hospitals and doctors can afford to provide coverage. For example, special provisions were put in Medicare coverage to up stroke reimbursements because it turned out that most hospitals did not provide the new clot-busting drugs to stroke victims. Medicare payments were too low to fund it, and most stroke victims are older persons. However, effective stroke treatments have the potential to save very large amounts of money (disabled individuals receiving long term care funded by the government in nursing homes, for example). So the CDC did a study, and new codes were put in to fund stroke treatment to try to make it available.

The new health care law ignores all these facts, and just mandates that Medicare payments not be increased past a GDP limit. The only way to actually achieve that goal would be to kill expensive older patients, as far as I can see. The problem is that modern medicine works pretty well, but not treating older patients can often be far more expensive than treating them. Also, hospitals are mandated to treat them. And what about nursing home care? If you let an older person degenerate to the point to which the person can no longer live independently, they'll end up in a nursing home on Medicaid, which is going to cost us all a lot and which is not limited under the law.

But how well suited are lawyers to understand all this? I would argue not at all. This is a classic legislative and experimental problem, and the Supreme Court is hardly going to be competent to assess the consequences of the law. They, like everyone else, will have to sit and see how it works out. And once they rule, if it turns out that it does not work in practice, it is not as if they can go back and change their minds unless another case works its way up, and they essentially overrule themselves.

The comments on the post are interesting as well. Here are just two:
That's a fascinating anecdote. It seems you were talking about "politics" in the sense of majority-rule democracy, and he was talking about the new politics where the ruling class rules.

Yes, it's all politics. But "politics" now means continuing on with an unpopular plan toward a goal that most people don't want because the ruling class knows better. The political Establishment will pay attention to its "experts" but will ignore the opinions of the unqualified masses.

...just like the Republicans and W did when they were the top dogs of the ruling class.
Above the commenter refers to Ann's argument with the lawyer in the audience.

The final comment struck me as probably true:
One of the benefits of the Tea Party phenom is a rekindled interest in constitutional debates among non-lawyers. A year or two ago, I attended a judicial conference featuring various historians of the early Republic (Gordon Woods, Joseph Ellis, etc.). Both talked about how, when they give talks around the country on the books, many ordinary folks come up to them and want to discuss details of early American history. The professors were duly impressed by the interest and effort that many non-academics have shown in their work. One of them (Woods, if I remember correctly) described a conversation he had had with his mailman about Woods' then-latest book -- detailed, showing a depth of knowledge that Woods wished his students at Brown might someday acquire. The point of the anecdotes was that an interest in early American history had caught on with the public.

Perhaps the unintended gift of Obamacare will be a renewed interest in the Constitution among the citizenry. It's perhaps not surprising that, from Ann's description of yesterday's health care conference, the folks least interested in the subject were a lawyer and a legislator. If he keeps it up in Wisconsin, the legislator may well be in for a surprise, like the one many of his (former) colleagues received in Nov.
It's obvious that average citizens don't have the delusion that they or their families will somehow receive special treatment under the law. The workability of it carries a desperate interest for them.

There is a lot more I could write on this topic, but I will stop because I am curious as to how others see this.

I was quite amazed at the arguments being advanced by lawyers against the validity of constitutionalism. This seems to me to say a great deal about legal education.

The plain fact is that the concept of the individual's right to liberty is completely anathema to the ruling class, the radicals who disguise themselves as Democrats.

Breyer will find a way give an ok to the individual mandate, all the due process violations, and, in fact, the entire Obamacare bill because he has not a shred of integrity, because he is a radical intent on imposing his radical vision on the US. The Democratic Party has for 40 years been in the hands of radical leftists intent on imposing authoritarian socialism on the US ( criminal penalties abound in the Obamacare bill for those who flout it ). People like those you describe in the post are either radicals, or intend to game the system for personal gain.

What rights do the US citizen enjoy, if the government can decide how they spend their money? This bill sets the precedent; expect the explicit nullification of the Bill of Rights bit by bit as time goes by.
The word from Harvard is that the Tea Party types are "constitution worshippers."
MoM,this says less about legal education than it does about a privileged class that has felt secure for generations. Such classes inevitably begin to chafe at the way the Rule of Law restricts the immediate gratification of their desires. The result is usually a descent into Tyranny of one sort or another which destroys the very security that their privileged position depends on. oops.
It seems to me that we are again about to divide the world into two groups. The first cares deeply about how they are governed, knowing that it can go horribly wrong, and that the walls collapse after the termites have been at work for years. The other cares about comfort and not having to worry about anything, and especially not having to worry about tomorrow. When tomorrow comes, they'll deal with it. And if it means that the government wants them to take poison because they're too old ... well, so long as it's painless. Pain would be one more thing to worry about.

I suppose you can call it "being responsible as individuals" and "having all responsibility placed in the hands of caring institutions." But I'm not sure that captures it.

I do know which will can survive as a going concern.
IMO, things began going south in law schools back in the 60s. Bill and Hil are products of that era. That was when it was decided that the law was whatever you could convince a jury or judge it was. Forget the Constitution and precedents. That's for stiffs stuck in the past. Gotta roll with the new times.

You saw a lot of that during the Clinton impeachment debacle. He was clearly guilty of perjury. The chief law enforcement officer of the country perjured himself, but many legal beagles said it was not a big deal. As a result, he lost his law license and walked. Lady Justice wept.

Rule of law is a big deal in our system, particularly property law.
Some years ago an economist, Hernando DeSoto wrote a book, "THE MYSTERY OF CAPITAL." It was written to describe his studies of the Egyptian economy. Asked by the Egyptian government to explain why they could not do better economically. The problem, as he saw it, was that they had no system of property laws backed by courts. If a person cannot gain a legal, and therefore transferrable, title to property, he/she has no way to create and hold onto the product of their labors and investments. He recommended that Egypt set up such a system. They ignored his advice for the most part.

The present problems in Egypt and other ME countries can be laid at the door of this lack of property law and, of course, the Muslim Brotherhood. Without property laws, backed by the courts, wealth remains in the hands of those with power.

This is part of the Egyptian problem and what we TEA Partiers are battling to hold onto here. If Obamacare is ruled constitutional we will have taken a big step on the path to nullification of the Constitution and away from a nation with a system of law that works.
M_O_M, I do have a fair amount of recent second-hand knowledge of what they teach about the Constitution in law school these days.

It seems the traditional understanding of the Constitution as a contract between three parties (the Federal Government, the States, and the People) is not even brought up. The fellow I had been talking with literally got a blank look on his face when I mentioned it.

Lawyers really are taught the Humpty-Dumpty Constitution. It means what a judge says it means. No more, no less.
That Wikipedia article would indicate Breyer is more interested in applying international law to us than the Constitution.

I agree with the commenter on Althouse who said that we should get rid of all waivers and get rid of Congress' special health plans to use Obamacare. If this is such a wonderful plan and if everyone else in the country has to take part, why should they be exempt?

The educated class doesn't have many dealings with common folk, so they don't understand that some of us actually read. They should be introduced to a farmer or two. I've always found farmers have enough time to think about things, so they have interesting ideas. If we were creating a new constitution, it would still come from that group of people.
I had read the Althouse post earlier. I was struck first by the fact Richards is a state legislator. He clearly does not want to be restricted, in any way, from legislating. If he has the votes, he wants it done. He is exactly the type of person who needs to be restrained by the Constitution.

Ilya Somin blogs at the Volokh Conspiracy as does Randy Barnett. I was not too surprised by Somin's anaysis of SCOTUS votes: "He said the 4 liberals would stick together and uphold it, that the conservatives were a more "fractious" bunch, so although Scalia, Thomas, and Alito would vote against it, he doesn't know what Roberts and Kennedy will do." My bet is we are down to the one man Supreme Court again. I wonder, though, if Obama "dissing" of the Supreme Court at last years SOTU will come back to haunt him. I sure hope so.

Based on the financial analysis from MOM, it seems the worst of all worlds would be if this monstrosity were judged Constitutional and then came tumbling down over the massive, but mostly unmentioned, financial problems. As far as I know, the Federal Government cannot force the states to provide Medicaid. If the cost becomes too onerous, then some will just not do that. Then we have the curious situation where some states provide medical care to the indigent and some do not. How long could that go on?

I can see the situation where we get a partial implementation of this health care stuff and then the reality of the the true cost becomes clear and the effort must be abandoned or significantly cut back. Will we have destroyed the health care system with little or nothing to replace it? How many seniors can Medicare kill to save money before people notice their parents or their friends (or themselves) are not getting reasonable care?
I would also have liked to have heard how Ann's debate with her table mates continued. My first thought was to wonder why the lawyers favored the law, but then it hit me that his is Madison, one of the last three or 4 bastions of the 60's (along with Berkeley, Boulder, and Austin).

We have often been told the Supreme Court "reads the election returns". So, politics are not unheard of. As the cases wend their way toward the Supreme Court, it is possible we will have another election prior to any SCOTUS decision. A residential election would make the politics quite clear. In fact, an election might make a decision moot. If Harry Reid were to allow a vote on ObamaCare, I really doubt he could hold his caucus together. There are 23 Democratic Senators up for reelection in 2012. The more we learn about the Heath Care bill, the less we like it. Forget about the AP poll from last week or so. It heavily oversampled Democrats, It was an "all adults" poll. The questions were not well constructed. There was an effort to gather support ObamaCare prior to the House vote. That support did not seem to make much of a difference.

My Congressman sent me a "poll" that consisted of a series of questions asking about parts of the bill he thought I would like, but curiously did not mention things like the mandate, job losses. and all the possible negatives. I sent him (Ted Deutch - replaced Robert Wexler) a nasty note protesting his "poll". His poll, the AP poll, and the ABC/WaPo poll were all Kabuki theater designed to raise the positives on the health care bill. I do hate it when the media functions as cheerleaders.
Breyer, international law, and the Constitution:

I wonder if the desire to defer to some "higher" law is actually a misplaced and perverted humility. Once a Supreme concludes that he is the highest law of the land, he's in the position of having no authority to which to turn, nothing that will take from him some of the awful responsibility which he has abrogated to himself.

A judge who places himself below the written Constitution has a "higher power" in law, and should not want to turn to someone else. That is the proper judicial humility.
Jimmy, Fboness & Tom -
There was a time, even at Harvard, when the phrase "a nation of laws and not of men" was honored.

Teri - oddly enough, my father once said almost exactly the same thing. He was an engineer and businessman. He said that farmers had to deal so immediately with uncontrollable reality that it made them very sensible.

Neil and Rick - in part, the legislative/lawyer axis (unrestricted legislation is good) is the product of lawyers aspiring to politics and sort of following along. You often see the same thing in conservative legal circles.

I think it is a human failing. We want to do good. We want to solve ills. And we tend to gloss over the intermediate steps in favor of reaching that shining city on the hill.

But utopias have such a tragic record of failure that perhaps only studying history can really offer us some protection.

It often strikes me that our current vision of the law and constitution are almost diametrically opposed to the founders, but it is the founders' vision which is still keeping our society running.

We may lose it all within a generation. We may experience a strong popular response rejecting this derangement, but I think to reverse course an epic shock is needed to legal circles.

I am now in favor of using the states to limit the Commerce Clause just because all the people involved with law have forgotten what it's all about.

Lastly, I read Volokh all the time and I am familar with Somin.

In the more conservative/libertarian legal circles, there is little recognition that we are close to an abyss.
"In the more conservative/libertarian legal circles, there is little recognition that we are close to an abyss."

It seems like many people fail to recognize the abyss. I read enough and follow the economics enough to sense the impending abyss. But, when I watch CNBC, see the ads on TV, and read the newspapers, there does not seem to be much acknowledgment of potential problems. In fact, everything is rosy. But, the mood of the country seems much more somber. There seems to be an unfocused unease in the land.

John Maulden's newsletter yesterday looked at the GDP number from Friday and concluded the real value was between a +.5 and +1.0. But, we can be sure the 3.2% will be bandied about until the employment report on Friday does not reflect that kind of growth.

A couple of years ago, I read the "Fourth Turning" by Strauss and Howe. James Quinn has a lengthy blog post at Seeking Alpha putting that book in perspective of our recent events. It is not pretty.


Some of their "guesses" from 1997 are eerily current. One, as M_O_M mentions is a revolt by the states. He even has a quote from David Walker which ties us right back to the Althouse entry that started all this.
I have to agree this sums up our current situation:

"[T]he new politics where the ruling class rules... "politics" now means continuing on with an unpopular plan toward a goal that most people don't want because the ruling class knows better. The political Establishment will pay attention to its "experts" but will ignore the opinions of the unqualified masses."

The thing not enough people appreciate is that the above is the default state for human affairs. Western Civ, and America in particular, was the exception to the rule. It takes a vigilant and educated populace to resist the entropy towards authoritarianism. Consider what came after the Romans and for how long.
Breyer is unfit to be a Supreme Court justice is he's using Isaiah Berlin as an expert on the American political system.
Breyer is retired.

I find his "active liberty" junk to be junk and logically inane.

Breyer tended just to defer to Congress, and he seemed to me to struggle to find reasons to justify it. Nonetheless, Congress' constitutional power and responsibility is massive, and the judicial arm should properly attempt to guard its functioning.

But I draw the line at decisions that ignore the plain language of the Constitution. Congressional powers are necessarily limited, and properly understood, Congress is more effective when those limitations are observed. The massive power allocated to Congress can only survive if it does have clear limitations.
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