While most of us have not had the time to peruse the Senate health care bill, much less analyse its various provisions, the University of Chicago’s Richard Epstein has already penned a sizable essay on why portions of the bill should be found unconstitutional. He summarizes:
In effect, the onerous obligations under the Reid Bill would convert private health insurance companies into virtual public utilities. This action is not only a source of real anxiety but also a decision of constitutional proportions, for it systematically strips the regulated health-insurance issuers of their constitutional entitlement to earn a reasonable rate of return on the massive amounts of capital that they have already invested in building out their businesses.
It’s an interesting argument. Time permitting, I’ll comment on it later.
Richard Aubrey says:
Constitutional?
December 21, 2009, 1:28 pmAre you serious?
Are you serious?
Vader says:
I don’t think there’s a constitutional right to earn a reasonable rate of return on one’s capital investments.
There is, however, or at least once was, a constitutional limit on the power of Congress to restrict commerce. I think the limit pretty much evaporated under FDR.
December 21, 2009, 1:44 pmA Conservative Teacher says:
You’re assuming that the Constitution is a dead document that says what it means, and isn’t a living document that says nothing. Do you seriously think Democrats even think about or worry about things being Constitutional now? Be serial.
December 21, 2009, 1:44 pmChris Travers says:
But if our Constitution incorporates the basic principles of common law as well as the document itself, wouldn’t one expect that the truth is that it has some life to it?
The problem is that, in our Common Law system, we have a sticky web of legal precedents and strange things happen as new cases arise. Add a strand or cut a strand and the topology of the web shifts in sometimes strange ways.
December 21, 2009, 2:01 pmMalvolio says:
Well, there is that pesky Commerce Clause, but if ACORN has a Constitutional right to government contracts*, don’t honest business have some right not be arbitrarily driven into bankruptcy?
* Yes, I know, ACORN only has a Constitutional right to compete for government contracts in a fair contest, and I grudgingly support that, but I don’t feel unreasonably asking for a crumb of that fairness be extended to people who haven’t come out publicly in favor of enslaving and raping children.
December 21, 2009, 2:02 pmTwirip says:
And by “most of us” you mean “ninety percent of the US Senate”.
I suppose it would take a Constitutional amendment to require bills to be read before being voted on. Or even written before being voted on.
December 21, 2009, 2:04 pmRoger says:
A “constitutional limit on the power of Congress to restrict commerce”? Last I checked, the Commerce Clause was phrased as an affirmative grant of power, not a limitation.
December 21, 2009, 2:04 pmTwirip says:
We’re not supposed to have a common law system.
December 21, 2009, 2:06 pmresh says:
One wonders 1)why the insurance cos. are not bellyachin’ were their economic fate doomed per Epstein and 2) if the mandates on individuals to buy insurance-thus enlarging the pools-offset the putative (nationalizing) losses he suggests.
December 21, 2009, 2:06 pmArthurKirkland says:
for it systematically strips the regulated health-insurance issuers of their constitutional entitlement to earn a reasonable rate of return on the massive amounts of capital that they have already invested in building out their businesses
When the government enacted Prohibition, did it (or was it required to) reimburse vintners, brewers and distillers for their investments?
If the drug warriors are put out of business by legislation, will the government be obligated to reimburse companies that have invested in related businesses?
Would the government be prohibited from outlawing abortion (or sale of morning after pills) because that would ‘strip[] the regulated [abortion providers/pharmaceutical manufacturers] of their constitutional entitlement to earn a reasonable rate of return on the massive amounts of capital that they have already invested in building out their businesses[?]‘
If a state creates a new land-grant university, must it compensate the private university a half-mile away? A mile away? Twenty miles away?
If a state closes a public university, must it compensate the proprietor of a new student-aimed apartment complex?
These questions incline me to read Professor Epstein’s essay. If nothing else, some of my friends may possess some century-old claims I had overlooked.
December 21, 2009, 2:09 pmDangerMouse says:
Libs don’t care about the Constitution. The power to regulate commerce means that they can make slaves of anyone they want.
December 21, 2009, 2:10 pmShelbyC says:
Prohibition was explicitly authorized by the constitution.
December 21, 2009, 2:11 pmDangerMouse says:
Shelby,
Prohibition and its amendments make a mockery of the commerce clause. So also do the income tax amendment. Under the modern lib way of reading the commerce clause, neither prohibition nor the income tax amendment would’ve been necessary, because the commerce clause is all-empowering.
The real answer is to repeal the commerce clause.
December 21, 2009, 2:15 pmArthurKirkland says:
Bypassing the issues concerning the collision of (ostensibly) constitutional provisions . . . when the government increased the drinking age to 21, were vintners, distillers and brewers entitled to compensation for investments made to serve the important 18-to-21 market segment?
When liberty-hating killjoys outlawed marijuana, were industry participants entitled to compensation?
December 21, 2009, 2:20 pmTwirip says:
Prohibition was enacted via constitutional amendment, not by “the government” as such. That takes constitutional issues out of the picture in that case.
The striking thing is, it was once felt neccessary to actually amend the constitution to do something like Prohibition. The current Congress would merely pass a law and the Court would probably uphold it under its (not the Constitutions) Commerce Clause. It’s impossible to imagine anything like the current healthcare bill passing the Courts muster earlier in the history of this country. That’s the “living Constitution” in action.
December 21, 2009, 2:20 pmTwirip says:
One of these things is not like the other.
December 21, 2009, 2:22 pmAnthony says:
There’s nothing specific in the Constitution entitling one to a reasonable rate of return, though it’s often good public policy to allow it (not by any means always; for an obvious example, there’s no reason to allow a reasonable rate of return on criminal activity).
December 21, 2009, 2:28 pmChris Travers says:
Anthony:
I think the question is whether this would constitute regulatory takings.
December 21, 2009, 2:33 pmArthurKirkland says:
In what way? First, the nanny-staters criminalized the sale and use of marijuana. Then, the nanny-staters criminalized the sale of healthful, enjoyable alcohol beverages to 18-, 19- and 20-year-old adults. Libertarians and liberals have been unable to overturn either affront to American liberty, neither of which derives from a Constitutional mandate.
I skimmed Professor Epstein’s essay, without finding enough persuasive argument to incline me to read every word.
December 21, 2009, 2:36 pmSteve says:
The stock market certainly doesn’t agree that the Senate bill cripples the insurance companies.
December 21, 2009, 2:49 pmContemplationist says:
Professor Epstein’s argument here relies on his broad interpretation of the Takings Clause (with which I agree BTW), but I don’t see this line of argument winning many converts, seeing as it is that his Takings Clause interpretation itself is agreed to by a tiny minority, no?
December 21, 2009, 2:55 pmA waste of effort, or a purely academic exercise, equivalent to ‘angels dancing on pins blah blah’
LarryA says:
There’s a difference between putting someone out of business, and requiring them to keep operating the business under extensive government control at a huge loss.
There’s a Constitutional right to have a chance at it.
December 21, 2009, 2:55 pmBrian K says:
don’t forget the prevention of broadcasters from broadcasting very profitable shows that contain sex, violence or obscenity during certain hours of the day, the prevention of prostitutes from earning a reasonable living, onerous restrictions designed to deprive strip clubs from a reasonable profit.
December 21, 2009, 2:58 pmBrian K says:
this never stopped conservatives before, so why now?
December 21, 2009, 3:00 pmChrisIowa says:
When it was enacted Prohibition was explicitly required by the constitution. The only thing left to congress was the enforcement mechanism, though there was some thought at the time that beer and wine could be defined out of “liquor”.
December 21, 2009, 3:01 pmgeokstr says:
What’s even stranger is that, no matter which strand is added or cut, the “stange ways” that the topology of law shifts go only in one direction – towards the Collective.
Whenever the slightest attempt is made to undo the nightmares caused by this one-way “shift”, the predictable outraged screams of “stare decisis”, “precedent” (along with the usual epithets) can be heard coming from the leftists who ignored, twisted, distorted, defied, or just plain made up the “precedents” that now leave us here…totally screwed.
But not to worry, it’ll only cost a couple hundred million broken eggs to get us to the workers’ utopia because they’ll do it right this time.
December 21, 2009, 3:05 pmDilan Esper says:
Professor Epstein’s argument here relies on his broad interpretation of the Takings Clause (with which I agree BTW), but I don’t see this line of argument winning many converts, seeing as it is that his Takings Clause interpretation itself is agreed to by a tiny minority, no? A waste of effort, or a purely academic exercise, equivalent to ‘angels dancing on pins blah blah’
Yeah, this is a problem with a lot of conservative and libertarian writing about the Constitution (and has been especially prevalent in writing about the health care bill).
The fact of the matter is, it’s really easy to flatly declare that the Constitution is really restrictive under your pet theory and that therefore hundreds of pages of the US Code, including the new health bill if enacted, are unconstitutional. But if your theory has either zero or one vote in the Supreme Court, it isn’t really relevant to any serious discussion of constitutionality.
What is in short supply are serious arguments by conservatives and libertarians as to how the health bill is unconstitutional under current jurisprudence. (And arguments that say “sure, the controlling cases are really really permissive but there’s no case that hyperspeficially approved this particular bill” don’t count. You have to show where the courts have actually said that this sort of law would be unconstitutional.)
December 21, 2009, 3:07 pmDenver says:
Since when do the words “reasonable rate of return” appear in the constitution? Since when did the words “interstate commerce” disappear from the constitution? Likewise the words “necessary and proper”?
December 21, 2009, 3:08 pmChrisIowa says:
IIRC, the sale of alcohol to 18 to 20 year olds was not prohibited, by congress. Congress coerced the states into enacting that legislation.
It seems to me that Congress should not be able to get regulation by coercion that it does not have directly under the constitution. But then, IANL and I know that usurpation of power by coercion by Congress goes back to Jackson’s terms.
December 21, 2009, 3:09 pmHouston Lawyer says:
I expect to see some method enacted to prevent doctors from going into early retirement. We’ll see if the 13th amendment has any life left in it either.
December 21, 2009, 3:09 pmrichard says:
One wonders 1)why the insurance cos. are not bellyachin’ were their economic fate doomed per Epstein and 2) if the mandates on individuals to buy insurance-thus enlarging the pools-offset the putative (nationalizing) losses he suggests.
Well since the stocks of the biggest insurance companies have gone up substantially since it became likely and then apparent that the Senate would pass the bill, somebody doesn’t believe that the insurance companies are being deprived of their right to a reasonable return.
December 21, 2009, 3:09 pmTwirip says:
In that Prohibition was mandated by the Constitution while the laws against cocaine etc are not. That seems like a pretty large legal distinction.
December 21, 2009, 3:10 pmDangerMouse says:
Houston,
It doesn’t. Like I said, modern lib interpretation of the commerce clause will make slaves of us all. If they can force you to buy insurance, they can force you to work.
December 21, 2009, 3:12 pmMark N. says:
Considering the large upward moves in insurance-company stocks lately, the market appears to predict that, to the contrary, this bill will result in insurers operating a regulated business at a huge profit. Is shoveling public money at a company in a way that greatly increases the value of their business really a regulatory taking?
December 21, 2009, 3:14 pmTwirip says:
I’m sure they will make a very reasonable return. Other government run entities do. It’s hard not to make a reasonable return when the state coerces the taxpayers on your behalf. Goldman-Sachs stock price soared when it became clear that it functioned as an arm of the state while still allowing people to ge rich off it.
Democrat style socialism looks a lot like corporatism or fascism, doesn’t it?
December 21, 2009, 3:15 pmPuyallup says:
Quite frankly, this is needed. Require the final text of any bill up for a vote to be posted in a place available to the public for seven working days prior to the vote, and the date of the vote to be posted along with the text of the bill, and a great deal of the corrupt insertions in present legislation would be insupportable.
December 21, 2009, 3:16 pmTwirip says:
Since when did “Denver” understand the meanings of any of those words?
December 21, 2009, 3:17 pmTwirip says:
Liberals supported those measures. In fact they enacted them into law. It’s hardly a shock that they have not joined with libertarians in overturning them.
December 21, 2009, 3:21 pmFraggle Rock says:
Puyallup:
“When there is a bill that ends up on my desk as President, you will have five days to look online and find out what’s in it before I sign it.”
-Obama campaign speech in Green Bay, Wisconsin, September 22, 2008
Obama lied about that. He broke the promise twice before the end of January.
December 21, 2009, 4:01 pmrarango says:
It may be a bit premature to speculate on the bill–We have no idea what will come out of the conference committee and given that may be where the big fight takes place.
December 21, 2009, 4:16 pmAnthony says:
Then say that — don’t claim “the constitution guarantees a reasonable return on investment”, say, “this regulatory change devalues the investment made by investors in these produces and is thus an unconstitutional regulatory taking”. You still probably won’t convince anyone who doesn’t already agree, but at least the claim bears some discernible relationship to the actual text of the constitution.
December 21, 2009, 4:19 pmMark Field says:
Sure we are. The courts have operated under common law process (not always common law substance) since day 1 of the Constitution.
December 21, 2009, 4:24 pmMark N. says:
I didn’t recall offhand who had enacted what, so was curious whether this was true. For what it’s worth, the National Minimum Drinking Age Act of 1984 was passed 86-14 in the Senate, with about the same proportion of both parties in favor (R 45-10, D 36-6). Reagan signed it. So I suppose both liberals and conservatives are to blame. Opposition was a handful of civil-liberties liberals and libertarian conservatives: Leahy (D-VT) and Symms (R-ID) were prominent among them.
December 21, 2009, 4:48 pmRPT says:
That will certainly cull out those who like treating patients and practicing medicine from the Coburn-types.
December 21, 2009, 4:49 pmRPT says:
DM: I thought you were part of the “no work-no eat” group.
December 21, 2009, 4:51 pmEngineer says:
If Senators and Congressman were sincere people, they would be sending their constituents holiday greetings saying: “Me and my friends are the ones in charge, so get lost”.
December 21, 2009, 5:27 pmArthurKirkland says:
Does anyone doubt that conservatives today stand between the United States and meaningful reform of drug laws? When liberals and libertarians eventually reform those laws, it will be by striding over conservatives still wagging their anti-libertarian, ‘no fun of any kind’ fingers. The states’ rights and medical marijuana fights seem instructive in this context. Democrats refrain from proposing reform because they lack the courage to stand up to demagoguing conservatives. Republicans refrain from proposing reform because believve imprisonment to be a fine penalty for use of marijuana.
Prof. Epstein’s argument strikes me as having fewer legs than the argument that the Constitution does not grant the government “wartime” privileges absent an express declaration of war.
December 21, 2009, 5:43 pmRPT says:
I received that one every year from 2000-2005. Were you on the list? Seriously, the health care deal is, unfortunately, insurance company and pharmaceutical company blessed, and does not promote either competition or more coverage as it should.
December 21, 2009, 5:45 pmBC says:
This libertarian is not exactly holding his breath waiting for liberals to join him in seeking to reform the nation’s drug laws.
Moreover, should liberals as a political bloc ever seek such reform, it will more likely be because they see enormous possibilities for funding their insane social and economic policies by taxing drugs than because they’ve had a genuine and sincere Come to Jesus moment vis-a-vis the drug war.
December 21, 2009, 5:59 pmSenate Bill Unconstitutional? « TeeJaw Blog says:
[...] There is a comment over at The Volokh Conspiracy on Professor Epstein’s [...]
December 21, 2009, 6:10 pmDilan Esper says:
Does anyone doubt that conservatives today stand between the United States and meaningful reform of drug laws? When liberals and libertarians eventually reform those laws, it will be by striding over conservatives still wagging their anti-libertarian, ‘no fun of any kind’ fingers. The states’ rights and medical marijuana fights seem instructive in this context. Democrats refrain from proposing reform because they lack the courage to stand up to demagoguing conservatives. Republicans refrain from proposing reform because believve imprisonment to be a fine penalty for use of marijuana.
This is in some ways both fair and unfair to conservatives and libertarians. It isn’t really true that there is huge conservative agitation to have strict marijuana laws. Indeed, some pretty important conservative opinion outlets, such as National Review, go along with the libertarian set, including Reason Magazine and Cato, in opposing them.
So in that sense, you can’t really say that conservatives or libertarians are really pushing to keep our strict marijuana laws. A few probably are (and certainly you can put the Bush Administration in that category, as they (and especially John Ashcroft) fought medical marijuana laws tooth and nail). But many aren’t.
That said, I do think in another sense this criticism is fair. Essentially, the conservatives who do oppose strict marijuana laws are pretty muted in their criticism of them (it clearly isn’t a big project of theirs), and I suspect I know why. There is a perception, accurate or not, that a lot of pot users are left-wing hippies. Conservatives aren’t really interested in taking on projects that are going to benefit that set– indeed, pissing off the left seems to be a big-time conservative project these days.
The right ought to see marijuana legalization / decriminalization as an anti-statist measure, but instead I suspect a lot of them see it as a project to benefit the dirty ****ing hippies.
December 21, 2009, 6:15 pmRichard Epstein on the Reid Bill | Liberal Whoppers says:
[...] Richard Epstein on the Reid Bill Share this [...]
December 21, 2009, 6:17 pmTwirip says:
Is this suppose to be some sort of actual argument?
All right, I get it, your mission here is try to persuade libertarians that they should become “liberaltarians”.
Best of luck with that, you’ll need it.
Back here in the real world, the “liberals” are doing their very best impression of far left socialists and trying to take over the health-care business. You remember, the actual topic under discussion here?
December 21, 2009, 6:32 pmTwirip says:
Really? This timid gutlessness which you claim to see in the Democrats does not seem to be at all in evidence on any other issue. For example, the issue you’re supposed to be alking about here, where they seem determined to sacrifice a lot of seats and perhaps even their majority just to send taxpayers money to the insurance companies.
December 21, 2009, 6:36 pmTwirip says:
I stand corrected. You have commented on the health-care debacle. And like the faux libertarian you are, you support the Democrats plans.
December 21, 2009, 6:39 pmnevadausa** says:
The market should be free of regulation.
Let the 2-3 health-insurers that dominate states like Georgia raise their premiums by 30 percent for healthy children who go to a doctor twice per year and 20 percent for adult females whose policies exclude pregnancy coverage.
Let’s see how long these insurers keep their customers — who, instead of sitting idly by watching their premiums double in 3-4 years, can boycott the industry.
To hell with health-insurance coverage.
That’ll teach those nasty insurance companies to gouge people.
(Maybe if Congress pass med-mal caps, like the ones in Georgia, we could have stopped premium gouging nationwide — keeping increases at around 30 percent per year, like in Georgia.)
December 21, 2009, 6:49 pmTweets that mention The Volokh Conspiracy » Blog Archive » Richard Epstein on the Reid Bill -- Topsy.com says:
[...] This post was mentioned on Twitter by PostRank – Law, Eugene Volokh. Eugene Volokh said: Richard Epstein on the Reid Bill: While most of us have not had the time to peruse the Senate health care bill,.. http://bit.ly/7bhLhO [...]
December 21, 2009, 6:52 pmBCKane says:
Does anyone doubt that conservatives today stand between the United States and meaningful reform of drug laws? When liberals and libertarians eventually reform those laws, it will be by striding over conservatives still wagging their anti-libertarian, ‘no fun of any kind’ fingers. The states’ rights and medical marijuana fights seem instructive in this context. Democrats refrain from proposing reform because they lack the courage to stand up to demagoguing conservatives. Republicans refrain from proposing reform because believve imprisonment to be a fine penalty for use of marijuana.
That is an interesting argument. So let me get this straight:
Conservatives believe that there should be “no fun of any kind” if they don’t support legalizing recreational drugs. On the other hand, liberals are somehow “reformers” if they want to take more money away from working people and require everyone to have a specific health plan. So taking drugs away from people (possible imprisonment and fines) = “killing fun” yet taking money away from people (possible imprisonment and fines) = “reform”?
That is an interesting assertion.
December 21, 2009, 6:53 pmFraggle Rock says:
“Let the 2–3 health-insurers that dominate states like Georgia raise their premiums by 30 percent…”
Or just allow inter-state competition?
The government creates these monopolies, not the free market. Instead of opening up the states to competition from the rest of the nation, they continue to allow state monopolies to exist. Why would you immediately jump to price controls as the solution instead?
December 21, 2009, 7:14 pmAllan Walstad says:
Feds violating the Constitution? Ho, hum…pardon my yawn. If the feds can force everyone into a socialized retirement system, they can do any freaking thing they want. The whole notion of discussing constitutionality “in light of current jurisprudence” (as I think Dilan Esper put it earlier) amounts to finding fig leaves whereby the black-robed political appointees on the SC might strike down new flagrant constitutional violations while pretending that they and their predecessors had not already consigned the Constitution itself to a landfill. Well, truly, I do hope they find a fig leaf and wear it. But I don’t expect them to do so.
December 21, 2009, 7:16 pmStrict says:
Yessss!! Black robed masters! They sound so cool when you say it that way.
Twirip, what’s the basis for your statement that we’re not supposed to have a common law system?
The Soviet Union had no common law, just statutes and regulations. How miserable.
December 21, 2009, 8:24 pmArthurKirkland says:
BCKane:
If your assertion derives from an assumption that I am a fan of mandating citizens to purchase health insurance from private providers, you are mistaken.
Also, government “taking money from people” is scarcely a new or disdained concept. Some people prefer to use government funds for health care, others for invasions and occupations, others for attempting to prevent floods, others for building roads, others for educating 10-year-olds, others for maintaining airports. But just about everyone accepts, if not enthusiastically welcomes, “taking money from people” to fund government operations.
Most people — other than those who oppose abortion — even accept that some of that money will be spent on things they dislike. I, for example, dislike torture, sugar subsidies, no-knock drug raids, any invasion of the wrong country, confected prosecutions of bong salesmen, disproportionate transfers of federal dollars to certain states, death squads and any payments to Blackwater or Kellogg Brown and Root — yet I pay plenty of taxes without a fuss.
December 21, 2009, 8:33 pmMarkRockwell says:
Boo! Hoo! The world is worse with a social-security safety net. And now they want health care too? People should have to work hard like I did for 50 years with no bad luck and no mistakes!
Let them eat cake!
December 21, 2009, 8:37 pmTwirip says:
The Federalist Papers.
Common law consists of statutes and regulations. All law does. What distinguishes common law is that it is made by judges, not the final product.
December 21, 2009, 8:44 pmBC says:
How nice for you, that you’re so amenable to serfdom. Others are not so inclined.
December 21, 2009, 8:47 pmMarkRockwell says:
You mean the corpus of general background material? Or just your favorite parts?
December 21, 2009, 8:49 pmTwirip says:
I suppose it is easy to make that “mistake” seeing as how you have yet to take time off from reciting your laundery list of left-wing talking points long enough to actually oppose government’s “mandating citizens to purchase health insurance”. You know, the supposed topic under discussion here.
PS: You forgot “Haliburton”.
December 21, 2009, 8:51 pmTwirip says:
I mean the Federalist Papers.
Which is why I said “the Federalist Papers”. It should sort of tip you off.
December 21, 2009, 8:52 pmMarkRockwell says:
I am so mad about that new interstate junction; which is why I intend to murder my representative and blow up the world.
No one makes a serf out of me! Not in my democracy.
December 21, 2009, 8:53 pmArthurKirkland says:
Is the counterargument that one should not pay taxes unless one endorses every governmental expenditure . . . that one should leave the country unless one endorses every governmental expenditure . . . or a different but similarly silly argument?
December 21, 2009, 8:54 pmTwirip says:
This site was far more interesting back when it was dominated by people interested in discussing ideas and when clowns like you were off sniggering about “”Chimpy McBusHitler” at “The Smirking Chimp”. That seems to be your correct intellectual level, I suggest you stick with it.
December 21, 2009, 8:56 pmMarkRockwell says:
Oh ok. So your favorite part. Of something that isn’t law, but, that you think should be binding on the very architectural operation of our nation. Kinda like how I think that the Supreme Court should consider, say, Rawls or the constitutional deliberations of Spain if they happen to be enlightening on a subject. Of course, for every Rawls there’s a Nozick; for every Federalist there’s an Anti-Federalist.
December 21, 2009, 8:58 pmTwirip says:
Go away, dopey. I’m not going to even pretend you are worth talking serously to. You make ArthurKirkland seem like a serious student of law and history.
December 21, 2009, 9:01 pmArthurKirkland says:
The topic was Professor Epstein’s argument that the health care bill he dislikes is not only unwise but indeed unconstitutional, at least in part for failure to secure an adequate return for investors whose prospects are dimmed by government action.
Analogous questions — concerning creation of a university, prohibition of alcohol sales or abortions, dismantling of the marijuana trade, and the like — that tend to depict the professor’s energetic argument as unpersuasive and unrealistic seem pertinent.
December 21, 2009, 9:05 pmMarkRockwell says:
I guess that’s one way to handle it.
We’ll let it linger then, professor.
December 21, 2009, 9:08 pmTwirip says:
Indeed it is. But for some reason you are regaling us with your opinion of Blackwater and Kellogg Brown and Root instead.
You have implied that you oppose this healthcare bill. If so, why don’t you say so clearly and explain why.
You have suggested that libertarians should feel some commonality with people such as yourself. Based on what you’ve said so far, it will be a cold day in hell ..
December 21, 2009, 9:10 pmSarcastro says:
Yeah, I join Twirlips‘s call that all you complete stupid poopie-heads get of the Conspiracy. Only then will it return to civility and polite discourse that it was in days of Yore.
December 21, 2009, 9:11 pmTwirip says:
I can do without civility and polite discourse. What I can’t do with are stupid idiots who think that the words of the framers of the Constitution are of no more significance in understanding it than is “international law” or the musing of John Rawls, and who expect me to rectify the mistakes which their parents and teachers made many years ago.
By the way, your efforts at “sarcam” were never very good to begn with and you’ve only gotten lazier with age. If you want to engage people in debate, fine. Don’t wander in here and crap on the floor and expect everyone to admire what you’ve done, Castrato.
December 21, 2009, 9:19 pmMarkRockwell says:
Oh, the Framers? My bad. I was confused by your reference. I know them as Gods. Those three in particular. None of the other guys. Just those opinionated three. And not the strains of thought they echoed; or the subsequent development of those strains. Nope. Three dudes. That’s my constitutional mantra: Did my boys say it? Nope. Not law.
Incidentally, what are your thoughts on legislative history?
December 21, 2009, 9:26 pmSarcastro says:
Yep, anyone who is not an Originalist is evil America hater and should be given scorn, not actual debate!
December 21, 2009, 9:32 pmCato The Elder says:
All I want for Christmas is for the Democrats to take full ownership of this bill and the disasters it caused when they are pressed to account in the future. No deflecting, no dodging, no made-up statistics about increasing “access” for the poor and/or minorities. Just a willingness to take their political lumps when it is revealed they’ve knowingly and permanently increased the rate of health-care cost growth to bankrupt the country into a single-payer system.
December 21, 2009, 9:35 pmTwirip says:
Damn, son, if irony was a health hazard you’d be pushing up daisies.
All right. I’ll try to live up to the lofty debating standard you constantly display here.
(See, that is what sarcasm looks like)
December 21, 2009, 9:37 pmArthurKirkland says:
I just found something else I would prefer my government not spend money on.
I nonetheless will continue to contribute to the funding of my country.
December 21, 2009, 9:39 pmTwirip says:
Yes, we get that you’re very noble and heroic and all that.
Have you anything at all to say on the topic of this thread? Anything? Any? Thing?
December 21, 2009, 9:44 pmSarcastro says:
[I do engage those who merit engagement.
Seriously, do you not think reasonable minds can differ about what the best method of Constitutional interpretation is? Believe it or not, there are more philosophies than Original Intent and Whatever I want.]
December 21, 2009, 9:45 pmArthurKirkland says:
I dislike requiring citizens to purchase insurance from private vendors. In general, I would prefer a single-payer system, or something similar to it, for a basic level of health care, coupled with a system of elective insurance for better and/or more comprehensive services.
After observing those who currently strive to obstruct any progress refrain from attempting to change a dysfunctional, out-of-control, inefficient, economy-hobbling health care system when they had ample opportunity, I give the current controllers of our government’s levers of power credit for trying to accomplish something — and, perhaps, succeeding.
December 21, 2009, 9:50 pmrpt says:
As Sen. Coburn (the new Dr. Death) said yesterday “die quickly (before 1:00 a.m., that is)”.
December 21, 2009, 9:51 pmBrian K says:
Then you should have let the democrats pass the bill as they originally wanted it. republicans need to take full responsibility for their share of the crap that is about to be passed secondary to there unprecedented obstructionism and rampant lying. republicans fully earned their criticisms once they decided to do all they could to bring down the democrats and completely abdicate their responsibilities to govern those that elected them.
December 21, 2009, 9:54 pmTwirip says:
That would appear to be a set with only yourself in it. I have never seen you engage anyone in any sort of debate, let alone a serious one. All you ever offer are these lame one liners which lack any bite or any humor. It would not be so bad if you were at least witty about it.
I don’t think that “reasonable minds” can claim that we can get as much insight into what the Constitution means (aka interpretation) by reading Rawls or international law as by reading what the significant figures involved in negotiating and drafting it were thinking. No. I don’t accept that any reasonable mind can say such a thing.
That was the claim which I was responding to, after all.
December 21, 2009, 9:55 pmTwirip says:
The Dems have 60 votes and intend to pass the bill with those 60. There is zero Republican “responsibility” for this bill. Your party owns every last ghastly bit of it, and will pay the price.
It would be amusing if Obama were to veto it, wouldn’t it?
December 21, 2009, 9:58 pmTwirip says:
Maybe you still have not received the memo, but those who elected the Republicans, like those who elected the Democrats, hate the damn bill. That is, the people your party supposedly represent in DC hate what you are doing.
And you still want to try to blame the Republicans?
December 21, 2009, 10:03 pmMarkRockwell says:
Oh, we’re talking degrees now? Well sure then. And Rawls lends more insight than Dan Brown. I think we can agree on a continuum. But that kinda takes the wind out of the Originalist argument, doesn’t it?
If you recall, the issue was common law–do we have a common law system. Your argument was that we do not, and you know we do not because your preferred sources of extra-legislative authority says so. Now you explain that your preferred source is only a matter of degrees better than my preferred source. But doesn’t the debate itself undercut your conclusion? After all, if judges can look to the ideas of those who played a role in writing the laws, why not to those who first gave them the ideas or for that matter to other judges who later expounded on them?
December 21, 2009, 10:09 pmSarcastro says:
[For examples of me engaging people, you can check here and here and here.
The old international law question. I'm okay with international law's use in Constitutional jurisprudence. My logic goes thus:
1. Constitutional interpretation has a policy component to it beyond the mere text. The Constitution itself does not specify exactly what process is due, or what the Privileges and Immunities are, or when the right to free speech may be abridged.
2. In making these decisions, many factors must be taken into account. For instance practicality, founding principles (including contemporary English Common Law), American nature, human nature, etc.
3. Many of these factors have been considered by like-minded countries. Looking to see what they thought about, and what they implemented may give a decision maker insight into some of the #2 factors.
Now, can you agree that the above reasoning does not make me some kind of rabid Anti-American?]
December 21, 2009, 10:13 pmArthurKirkland says:
Of the points expressed in this thread, I believe my views concerning involving alcohol prohibition, the drug war, no-knock searches, abortion, sugar subsidies, morning after pills, and tying the current drinking age to highway funding are libertarian views.
Similarly, I believe my views concerning treatment of homosexuals, R-rated entertainment, immigration, pornography, flag-burning, eminent domain, government surveillance, the Pledge of Allegiance, defendants’ rights, self-defense, preemptive invasion and government secrecy are compatible with libertarian principles.
In short, libertarianism overlaps my views at least as much as it overlaps right-wing views.
I hope there isn’t as much snow in hell today as there is in Philaelphia or New York, but I guess it might be close.
December 21, 2009, 10:16 pmTwirip says:
What does “contemporary English Common Law” have to do with founding principles.
It is no business of judges to makes laws based on their understanding of human nature or other factors. So the Founders believed, so I believe, so the great majority of Americans today believe.
The charge against liberals is that their “interpetation” of the Constitution boils down to coming up with reasons (some of them highly implausible) for their own preferred policy positions. It’s not hard to see why people believe this to be the case. Liberals, and you, argue for a multitude of factors to be considered, yet considering them never leads you to an uncongenial conclusion. What are the odds?
Liberals don’t have any well ordered system of constitutional interpretation at all. If your system is deterministic, it is only so in that you are “determined” that the Constitution will mean what you wish it to.
I’m not sure what you mean by that, but I reject the notion that judges should “interpret” the Constitution with an eye to policy.
Lastly, I’m flattered that you consider me to be one who merits debate.
December 21, 2009, 11:01 pmTwirip says:
What about the topic of this thread? Any chance I can prevail on you to say anything about that?
December 21, 2009, 11:03 pmBrian K says:
wow. my post garnered not 1 but 2 response from Twirp. I am honored!
December 21, 2009, 11:10 pmMarkRockwell says:
Dworkin would probably not agree with you.
If judges can’t look to the things that Sarcastro suggested, then how do you propose a judge is to determine the meaning of the Commerce Clause or the scope of the First Amendment or any of the other similar issues?
This is an issue of Originalism that has often perplexed me. One could say, I think, that Originalism also seems a bit deterministic–it tends to be the case that Originalists find Hamilton to have precisely addressed the issue of, say, trigger locks or a health-care mandate. In fact, it seems a bit like Originalists are really saying, “Hamilton would be in favor of policy X,” where the “liberal” says “for reason Y we should prefer policy X.”
What am I missing? What fills the gaps in the Constitution’s abstract language?
December 21, 2009, 11:23 pmSarcastro says:
[I respond far to well to insults about my good faith I guess. Even so, glad I could tease out some reasoned opinion in you as well :-P
By contemporary English Common Law I mean contemporary to the time of the founders. That was unclear; sorry,
If one does not take policy considerations in to effect, how would they decide about forum restrictions on Free Speech? Or what "Due Process" is required for a school hearing?
Like it or not, the Constitution (IMO by design) is too vague to guide alone.
As for liberals being unprincipled, I have three responses.
First, and most petty, is tu quoque. Scalia's Originalism somehow takes a back seat when constitutionalized standing. Funny how textualism means no entitlements or FDA or all those regulations you guys hate, but somehow Brown v Board is in there nowadays.
Second is that there are many liberal policies that the left doesn't look for in the Constitution. Those that spring to mind include Equality in schooling, a more progressive tax rate, universal health care, elimination of school vouchers, adressing global warming.
Third is that there are a number of coherent theories beyond Originalism that are cabined in their results. Breyer's active liberty theory (basically Constitutional purposivism), and instrumentalism (interpret the Constitution's words as if they were written today) are the two I have heard bandied about.]
December 21, 2009, 11:27 pmMarkRockwell says:
Sarcastro, did you ever go by Eeyore on a totally unrelated board?
December 21, 2009, 11:39 pmSarcastro says:
[Nope. Sarcastro, or sometimes Ozymandias.]
December 21, 2009, 11:57 pmAllan Walstad says:
There’ nothing “mere” about the text. The text is there to convey meaning, to convey intent. To the extent that a clear meaning, a clear intent can be discerned, then that’s the law pure and simple. Don’t like it? Propose amendments.
Granted, the text can’t cover every eventuality, leaving reasonable people to disagree about reasonable differences. But it is absolutely clear from the text and its historical background that the Constitution limits the federal government to a few responsibilities and reserves the rest to the states or the people themselves. Taking over one sixth of the economy is not on that list. Intruding on individuals to the extent of forcing them to purchase health insurance is not on that list. Not within a million miles.
This is not a matter for reasonable dispute. The welfare clause or commerce clause or power of taxation cannot give the feds unlimited powers because it would fly in the face of the whole structure and clear intent that the feds are limited. Why would anyone even bother to enumerate powers, if the feds’ powers are unlimited? If anyone could have doubted otherwise, the Tenth Amendment drives home the point.
The notion that this so-called healthcare reform could be Constitutional is just the purest BS, and the fact that presumed legal “scholars” argue to the contrary (and are likely to prevail in court) is a measure of how perverted the political and legal system has become. I personally can’t do much about it, of course, except point out that the emperor is walking around in his long johns or less.
December 22, 2009, 12:03 amBC says:
No. It was simply that your timorous willingness to “pay plenty of taxes without a fuss” despite perhaps holding moral objections to what those monies will ultimately be used for does not make you into some kind of Hero Of Democracy to which the citizenry should look as an example. Others are entitled to “fuss” — both about paying taxes at all and about how those monies are expended by government — and along the way to conclude that you and people like you aren’t Heroes Of Democracy but craven imbeciles who enable the thieves and scoundrels that inhabit Washington.
December 22, 2009, 12:06 amSarcastro says:
And down goes the “Constitution means nothing, Government power is limitless” Strawman! I have never seen such a quick and brutal takedown!
December 22, 2009, 12:09 amKirk Parker says:
Twirip,
Oh, yeah. It’s just wierd how people keep forgetting they are the Law of the Land.
December 22, 2009, 4:22 amAllan Walstad says:
Well, you oughta know, buddy. In my experience that’s about 90% of your contributions to this site.
Still, thank you for illustrating the empty ridicule routinely directed against any who dare question the pols’ presumptions of unlimited power. As Pelosi put it, “Are you serious??”
December 22, 2009, 12:09 pmDilan Esper says:
Granted, the text can’t cover every eventuality, leaving reasonable people to disagree about reasonable differences. But it is absolutely clear from the text and its historical background that the Constitution limits the federal government to a few responsibilities and reserves the rest to the states or the people themselves.
That’s not “absolutely clear” at all.
It is, in my mind, clear that the federal government is supposed to be a government of limited powers, and indeed, I agree with the conservatives that cases like Wickard and Raich were wrongly decided. An activity has to be at least plausibly interstate and plausibly commercial to fall within the commerce clause.
But that’s far different from saying there was a hard limit on the number of responsibilities the federal government could have. The commerce power, for instance, even if properly cabined, is still very broad. There are all sorts of things that it seems to me that even the most anarchist libertarian has to concede are permitted by the commerce clause, such as regulating the safety of food shipments and interstate trucking, imposing price controls on the railroads for interstate shipping, imposing restrictions on guns shipped across state lines for commercial sale (subject to any limitations the Second Amendment might impose), requiring that common carriers not engage in discrimination, regulating the telecommunications industry, etc.
Similarly, the spending power is very broad as well– basically anything that promotes the general welfare and doesn’t run afoul of any other constitutional restriction is permitted.
The copyright clause is very broad– as long as the time periods of protection are limited, Congress has the power to cabin off large sectors of invented or created material for the exclusive use of certain people and to impose sanctions on those who use them without permission.
The point is, this isn’t a government that is limited to “a few” responsibilities. It is a government, indeed, that was given MORE power than the previous Articles of Confederation granted it. Rather, this is a government that has very broad swaths of authority that are nonetheless limited in ways that are designed to reserve certain powers to the states or the people.
What the boundaries are is a question that is often debated, but that’s clearly the general scheme that was set up.
December 22, 2009, 2:09 pmBrian B says:
–Then you should have let the democrats pass the bill as they originally wanted it.–
Um, wasn’t it all Democrats and independents that Harry Reid and Nancy Pelosi had to buy off to pass it? And weren’t the few Republican amendments allowed voted down?
December 22, 2009, 2:41 pmJeebus, even when the Dems have 60 in the senate they blame the Republicans for the legislation that comes out of the meat grinder.
Twirip says:
You are arguing the inverse of the “enumerated powers” doctrine – that the Federal goverment is permitted to do anything not expressly reserved to the states or the people. I don’t think that is a credible reading of the Constitution. Among other problems, it makes the Tenth Amendment meaningless.
December 22, 2009, 3:12 pmTwirip says:
Great, another wannabe Sarcrasto. Like his insipid one-liners are something which anyone should want to emulate.
If you bothered to read you might have noticed that I never claimed that the Federalist Papers were the law of the land, merely that they provided an excellent guide to understanding various parts of the Constitution which people argue over.
But that would impede your doing those things which liberals love to do above all else – sneer and posture.
December 22, 2009, 3:18 pmDilan Esper says:
You are arguing the inverse of the “enumerated powers” doctrine — that the Federal goverment is permitted to do anything not expressly reserved to the states or the people.
Re-read my post if you think I am arguing that.
I am arguing that the federal government IS limited to enumerated powers (and perhaps some leeway under the necessary and proper clause). But those enumerated powers, while limited, are also broad.
As I said, the commerce and spending powers, even if limited in the ways that say, Clarence Thomas thinks they should be limited, are still immensely broad powers. And this was deliberate, because the purpose of the Constitution was to expand federal power because the Articles of Confederation had failed.
The federal government is a government of enumerated powers, but the enumerated powers are not narrow and don’t limit the government to a handful of responsibilities.
And the tenth amendment isn’t meaningless– it confirms that what the federal government cannot do, the states (for the most part) can.
December 22, 2009, 3:19 pmTwirip says:
I repeat, if irony was a health hazard, you’d be a dead man.
You are able to criticize Scalia for failing to live up to his stated system precisely because he has a system against which his actions can be judged.
You liberals have no system at all, not even one which you claim to have as a goal and sometimes fall short of.
Your response of “Yeah, but you guys are poo-poo heads too” is not what I was expecting from a man who led me to believe that he was an expert debater.
You don’t seem to be well informed about the law or even current events. The left does, did, and will continue to attack “global warming” via the courts. Does Massachusetts v. Environmental Protection Agency ring any bells? And because the left has no “system” at all there is no logical reason why they cannot address “universal health care” via the courts. They simply have not done so yet.
But there is nothing in the left’s view of the constitution or the law to prevent them from doing so, and in fact everything about the left requires it to do so if it thinks that it can succeed via that route.
Liberals do not accept instrumentalism or any other theory of constitutional interpretation which would prevent them from viewing the constituton as a blank sheet of paper.
Taken literally, purposivism amounts to “original intent”. But in Breyer’s case purposivism is just a way of ignoring the words on the page before him. And, frequently, the original intent as expressed by the authors as well. Breyer decides what the true philosophical purpose of a piece of legislative text is and then attempts to make that the law. By a remarkable coincidence that true purpose matches up almost exactly with Breyers own policy preferences.
As practiced by Breyer it is not any sort of coherent theory of constitutional interpretation, which is why, unlike Scalia, nobody will ever be able to point to Breyer and say, “Look, he arrived at that conclusion in violation of his own stated system of legal interpretation”.
December 22, 2009, 3:54 pmTwirip says:
They were not immensely broad powers until the 1930′s. This leads me to believe that the view that they should be immensely broad powers was not shared by the people who originally conceived them.
This is true, of course. But it was not to expand it without limit. One of the big fears at the time was that the Federal government might escape the chains which were placed on it.
The second part of that sentence negates the first. If the enumerated powers are both immensely broad and also numerous then the Federal government has every right to intrude into a great many areas of life. In fact and in practice it has the right to do so in all those cases except those expressedly forbidden it by the Bill of Rights. (And frequently, even in those.)
This is the reality of con-law in America today, a reality which the liberal movement from FDR onwards has striven for. So I’m not sure why you wish to reject it.
That’s a tautology. The problem lies in the size of the sphere of things which the feds cannot do. It has been shrinking steadily for decades now, at the expense of both the states and the individual.
December 22, 2009, 4:10 pmTwirip says:
Can you list for me for those specific powers reserved to the states under the liberal interpretation of the constitution?
It should not take very long to do.
As for the people, a great deal of liberal legal theory is concerned with taking away peoples individual freedoms on the grounds that they would only abuse them.
December 22, 2009, 4:22 pmDilan Esper says:
They were not immensely broad powers until the 1930’s.
Really? Before the 1930′s, Congress enacted the Sherman Anti-Trust Act, the Pure Food and Drug Act, the Mann Act, the Comstock Act, the Interstate Commerce Commission, the Land Grant Act, and any number of other broad laws that relied on the traditional, more limited understanding of the commerce power.
Look, we can agree that there was a substantial expansion of federal power that occurred as a result of the New Deal (and another one that occurred as a result of the Civil Rights era). But that’s not the same thing as saying the Constitution didn’t set up a tremendously powerful federal government. The pre-1930′s conception of federal power nonetheless granted very broad authority to the federal government if it chose to use it.
December 22, 2009, 6:08 pmTwirip says:
I know it did. And I’m saying that this was not the “immensely broad” Commerce Clause crafted by FDR’s Supreme Court in cases such as Wicker, that it was much more limited in scope.
I get the impression that we’re using words in slightly different ways.
The Constitution did set up a “tremendously powerful federal government”, at least by the standards of the Articles of Confederation. But it did not set up anything even remotely resembling the current Federal government, which is a creature of modern “con-law” and almost entirely disconnected from the Constitution. Power is a relative thing. There’s no “powerful state/non-powerful” state dichotomy, it’s a smooth steady progression from anarchy to totalitarianism.
Perhaps we’re more in agreement than it appears. I’m simply pointing out that the Founders conceived of a Federal government of much more limited powers than the one we have today. That seems like an unexceptional claim, almost a trite one, and your own words about the expansion of the state in the 20th century are compatible with what I am saying.
I think this state is largely illegitimate, whereas I’d guess you approve of it. But that’s a different issue and has no bearing on the historical record.
Correct me if I’m wrong, but I think you are suggesting that implict in the Founders ideas was the possibility that, one day and if deemed neccessary, the Feds might prohibit a farmer from growing food for his own consumption. And that they were aware of this possibility and gave it their sanction.
I don’t want to put words in your mouth but if that is what you are saying, it’s simply ludicrous.
December 22, 2009, 8:40 pmrpt says:
Well, the founders never contemplated concentrated corporate power that, as in this instance, dictates most of what is done. If the expanded government is a problem, the corporate state is much worse.
December 22, 2009, 10:54 pmDesiderius says:
rpt,
“If the expanded government is a problem, the corporate state is much worse.”
Please elucidate, what, in your mind, is the difference between “government” and “state”.
December 23, 2009, 12:07 amDilan Esper says:
Correct me if I’m wrong, but I think you are suggesting that implict in the Founders ideas was the possibility that, one day and if deemed neccessary, the Feds might prohibit a farmer from growing food for his own consumption.
I think I made clear that Wickard and Raich are wrongly decided.
My point wasn’t that the current reach of the commerce clause is consistent with the provision’s meaning; rather, it was that even if you scaled the commerce clause back, it still permits plenty of things libertarians don’t like and grants a heck of a lot of power to the federal government.
December 23, 2009, 12:26 amTwirip says:
We’re in agreement then. Thanks for the clarification.
December 23, 2009, 1:27 pmMark Hall says:
Here is my response to Richard’s argument:
http://oneillhealthreform.wordpress.com/2010/01/02/confiscatory-rates-yet-another-constitutional-attack-rebutted/
January 2, 2010, 5:30 pm