Lithwick’s Lament

Shorter Dalhia Lithwick: The mandate must be constitutional because it’s compassionate to care about others.

Less short Dalhia Lithwick: The mandate must be constitutional because it’s about the freedom to have the government make sure we take care of each other.

Lithwick’s column makes the common mistake of evaluating a measure’s constitutionality based upon the desirability of it s purpose.  Yet as Paul Clement noted in yesterday’s oral argument (and we’ve noted repeatedly), there are many other ways of ensuring that those in need are able to obtain medical care and even of encouraging more Americans to obtain health insurance.  Lithwick argues opposition to the mandate is grounded in a “dark vision” of freedom circa 1804, ignoring the legions of public policy measures adopted since that expand the social safety net without the imposition of PPACA-style mandates.

Throughout American history when we, as a people, have decided that it is important to help those in need we have relied upon the power to tax and spend for the “general welfare.”  Rather than impose upon individual Americans an obligation to act directly on behalf of others (or even themselves) we have raised monies that can be devoted to charitable and risk-management purposes and created financial incentives for charitable behavior.  The federal government could have done that here, either by further expanding Medicare and Medicaid, subsidizing insurance for those in need, or raising taxes on everyone and offsetting the increase with deductions for insurance.  In short, there are many constitutional ways for the government to demonstrate  “compassion” without a mandate.  Yet Lithwick and others continue to insist that if their ends are pure, the means adopted must be constitutional.

If I wanted to be snarky, I’d also point out that it’s easy to be compassionate with other people’s money, and progressives should be careful before accusing those who oppose the mandate or other redistributionist policies as hard-hearted neanderthals.  After all, those on the right tend to donate a greater proportion of their own incomes  to charitable purposes than those on the left.