Tag Archives: freedom

It’s Not My Fault

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In his diatribe against the Supreme Court over its potential (not realized) to overturn the Patient Protection and Affordable Care Act, President Obama is not demonstrating a breathtaking ignorance of our Constitution or of the Federal Courts’ power of review of Congressional legislation.  Instead, he’s just beating an old familiar drum: any failure is somebody else’s fault.

In “framing the court as a potential villain that substitutes its judgment for that of elected legislators,” he’s just setting up the next set of villains in his serial pulp novel, I Didn’t Do It.

Mr. Obama ticked off a string of popular benefits that would disappear if the law is shot down….

Thus, Obama cynically ignores the fact that, were they good ideas, they could have been enacted, after public debate rather than locked door deals, through constitutional legislation.  Or he could have let a free market agree that they’re good ideas and generate a (potentially large) niche for them.

But Mr. Obama…said he was confident the high court would not [strike down PPACA], partly because conservatives—who are in the majority on the court—have long argued against what some refer to as legislating from the bench.

He, just as cynically, conflates upholding the Constitution as judicial activism.  Also,

He said that without the mandate, it would be impossible to require insurance companies to cover everybody, including those with pre-existing conditions, at a reasonable price.

He ignores the fact that it’s impossible to require this at any price.  A free market, however, would allow such coverages at costs commensurate with the risks being transferred.

President Obama, through his Press Secretary Jay Carney, even argues with a straight face that for the Court to overturn PPACA would be to undo 80 years of precedent vis-à-vis the Commerce Clause.  This disingenuously ignores recent Commerce Clause overturnings that others have described.  Even more disingenuously, it ignores the fact that those “80 years of precedent” began with Supreme Court’s overturning of 100+ years of Commerce Clause precedent in Jones & Laughlin and Wickard—the former by a Court thoroughly intimidated by FDR’s court packing effort, and the latter carried out by an FDR-packed Court, a Court in which 8 of the 9 Justices were FDR appointees.

And it puts Obama in the strange position of implying that Brown was wrong because it overturned 80 years of precedent flowing from Plessy.

It’s not my fault.  The devil made me do it.

The Supreme Court and Rule By Law

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Steven Hayward, at Power Line, wonders whether the Supreme Court could take a mulligan on the Patient Protection and Affordable Care Act case before them.  The background for his question is this:

What people forget is that Citizens United was reargued, because the Justice Department also could not give a coherent answer to a killer question, this time from Justice Alito, as to whether the campaign finance laws that prohibited the distribution of Hillary, the Movie wouldn’t also allow the Federal Election Commission to regulate the distribution of books near election day.  Then-solicitor general Donald Stewart answered Yes, notwithstanding that pesky little First Amendment thingie.

Alarmed, the Court ordered the case reargued, specifically expanding its scope to ask whether certain previous cases that provided the basis for Stewart’s answer had been erroneously decided and should be overruled.  During the second oral argument, a new solicitor general—Elena Kagan—was asked the same killer question, and answered: “No [we can’t regulate books]; the government’s position has changed.”

Stop and dwell on that one phrase for a moment: “The government’s position has changed.”  That says about all you need to know about the rule of law in the liberal wonderland of today’s administrative state.

The question in the Court’s present PPACA case that raised Hayward’s concern was Justice Kennedy’s “Can you create commerce in order to regulate it?”

The question I have, though, concerns the Court’s position on the rule of law vs rule by law.  Why did the Court need to wait on the Executive’s instruction to it of the distinction between one form of free speech and another form of the same speech?  Surely it knows that there is no distinction, and it can rule on its own initiative.  Surely, it could have recognized on its own judgment that a proper ruling in Citizens (i.e., that speech really is a matter of freedom) would require acceptance that it had decided erroneously on earlier cases, and that those opinions would have to be overruled.  How many times was Brown argued on the recognition that Plessy would have to be overruled?

Surely the Court knows that when commerce does not exist, there is nothing to regulate, and by extension, government cannot create commerce out of the æther in order to have something to do.

That this Court needs these answers makes me wonder about its own attitude toward rule of law.  It got Citizens right, but it shouldn’t have needed additional (and in the event both erroneous and irrelevant) instruction from the Executive in order to do so.  It shouldn’t need additional instruction here, either.

A Thought on Self Defense

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The uproar over a shooting in Florida brings up the concept of self-defense, and Joe Palazzolo and Rob Barry raise a number of points about this in their The Wall Street Journal op-ed.  In it, they write about “so-called justifiable homicides,” “leeway to attack and even kill someone who is threatening them,” and a victim’s duty to retreat when threatened or attacked.

What is self-defense; do we have a right to it; and if so, are there any limits to self-defense or to that right?

Our Declaration of Independence acknowledges the existence of a right to self-defense as a component of our suite of inalienable rights endowed by our Creator and so inherent in the fabric of our being:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

Plainly, the right to Life includes within it a right to defend, for ourselves, our own Lives and those of our families—and those of others related to us only through friendship and those not related at all.  “All men are created equal:” thus the right to defend a life includes the right—now the obligation—to assist in the defense of another’s life.  And this defense, and its underlying right, must come from within each of us.  We can—and we do through our social compact, of which our Declaration is our principles statement—assign to government certain tasks and obligations to help execute that self-defense.  However, we cannot surrender our right to do so to that government, for two reasons: first, as a part of our Creator’s endowment, the right is not ours to give away.  Second, and of secular and immediate importance, were we to surrender primary responsibility for our self-defense to a government, we would lose that right altogether.  By that surrender, that “right” becomes a thing that government can grant or withdraw at its whim.  At best, when the bad man comes, and seconds count, the police will be only minutes away.

Having demonstrated the existence of the right, what is it, exactly to which we have a right?  What is self-defense?  I described one aspect of it above: “a right to defend our own Lives and those of our families—and those of others related to us only through friendship and those not related at all.”  But there’s more.  Self-defense includes defense of all property, not just our property in our body: we also have a property in our thoughts, our Liberties, and our physical property.  Our thoughts are inherent in both our lives and our Happiness, as are our Liberties, and our physical property is part of the outgrowth of our pursuit of Happiness* (and without which, our Liberties and Lives are severely constrained, if they exist in this state at all.  The components of our endowment are tightly intertwined with each other, but that’s the subject of another post). Thus, we also have an inherent right to defend our possessions (and thoughts and Liberties) from attackers.

Given all of that, there can be no possibility of a “duty to retreat.”  There is no defense if we must give way to an attacker based on where we might be located at the time of the attack.  Our right of self-defense is in us, it is not in any location we might momentarily occupy.  There is no defense, if we must give up our property—any aspect of it—to a criminal’s demand, and hope that the property can be recovered intact by “authorities.”  Indeed, any retreat, of its nature, carries within it the characteristic of allowing our attacker to strike first, or threaten to do so.  Our Lives, if taken by our attacker, cannot be recovered at all, no matter how dedicated and efficient those authorities.  Retreat is only a tactical decision, driven by the exigencies of particular circumstances; it is never an obligation.

What then, are the limits to our right of self-defense?  The short answer is when the behavior ceases to be defensive and becomes offensive.  But it’s not that simple: no man has an obligation to allow his attacker to shoot, or stab, or otherwise strike first and only then to respond.  Clearly, when faced with such a threat, our right of self-defense includes a right to pre-empt our attacker’s potentially fatal assault: we can shoot first.  A couple of examples will serve to illustrate legitimate limits to our right of self-defense.

Our right, for instance, does not permit us simply to arrange our defense deliberately to kill our attacker.  That man also has a right to his Life, for all that he is endangering ours with his attack. (But we have no obligation to arrange our defense deliberately not to kill our attacker.  We have no obligation to handicap ourselves in so potentially a fatal-to-us way.)  If we kill him in the course of our defense, that’s unfortunate, but no wrong redounds to us.  If we kill him deliberately and as our goal, that legitimately can amount to one of the variations of murder.

Our right to self-defense does not allow us to hunt down our attacker in order to kill him.  We can chase him in an attempt to recover our property, and if in the course of that pursuit a struggle occurs and we kill our attacker in that struggle, we’re still engaged in self-defense.  However, we cannot chase our attacker with the goal simply of killing him, even if we recover our property in the course of that killing.  Nor, if we lose contact with our attacker in the course of our pursuit, can we then search for him in a separate act (although we certainly can aid the authorities in their search) and kill him after a successful hunt.

But if our right to Life enjoins us to help defend another’s life, how are we enabled to take another’s life, ostensibly in self-defense?  We are not so enabled while the taking is a goal.  But our right to our own Life is the primary interest.  We must protect ourselves first: we cannot see to any of our duties, including that to assist the defense of another’s life, if we are not safe and sound.  If we must kill in order to fulfill that primary interest, this is unfortunate, but it may be a necessary adjunct to our defense of our properties—whether in our selves, or our thoughts, or out Liberties, or our physical property.

As to limits on the right itself of self-defense, there is a very critical one, alluded to above: it is a part of our existence.  We neither can, nor may, surrender that right or any part of it to anyone else or to any authority.  Even that government which we hire, under our social compact, to help us protect all of our inalienable rights is hired to help us, not to substitute for us.

*As John Adams noted in his 1780 Massachusetts Constitution, in Article I of the First Part, “All men are born free and independent, and have certain natural, essential, and unalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.”

Information Privacy

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In a burst of good sense, the Federal Trade Commission is on the right track.  Earlier this week, it “issued a strong call for commercial-data collectors to adopt better privacy practices and called for Congress to pass comprehensive privacy legislation.”  While I have no great confidence in Congressional skill at protecting our privacy, this would be a better choice than leaving our information to the tender mercies of “commercial-data collectors.”  As FTC Chairman, Jon Leibowitz, notes,

Simply put, your computer is your property.  No one has the right to put anything on [your computer] that you don’t want[.]

The FTC’s initial solution, though, is at best naïve.  Putting a “Do Not Track” button into Web browsers is doomed to failure as Google’s decision to ignore even user-deliberate attempts to prevent their browsers from yielding up personal information demonstrates.  Such a button will not prevent the data collection; it can only rely on a “Pretty please, Mr Data taker, don’t take my data” plea.  Beyond that, the data collectors already are weasel-wording the meaning of “Do Not Track.”  The online-ad industry, for instance, has decided it means “Do Not Target,” and it will still collect your data for “market research,” “product development,” and the like.  Oh, and “trust us.”

The need for overt controls that actually block the collection rather than relying on begging and the good offices of the collectors is demonstrated by, even more than the equivocations, the rank cynicism of those collectors and their objections.  The Wall Street Journal article at the first link cites the Executive Vice President of the Direct Marketing Association, Linda Woolley—whose group represents many of those data hounds—as saying her Association opposes

giving consumers access to marketing information because it would be expensive, difficult to keep secure and the type of data used by marketers doesn’t harm consumers.

Sorry, Madam, your costs aren’t relevant to my privacy.  You don’t get to hide from me what you’re trying to take from me because that might hurt your pocketbook.  As to your plaint that such data would be “difficult to keep secure,” it’s not secure now.  You’re already taking it without our permission, and often without our knowledge, and as Google has demonstrated, and as Apple has demonstrated with its unauthorized tracking via our smart phones.  Worse, your view of “security” is markedly different from ours.  And on what basis should we believe your claim that the data you’re taking from us to be “used by marketers” doesn’t harm us when you’re at such pains to hide those data from us?

Woolley says,

We are very wary about taking the information out of the information economy[.]

Since it’s not your information in the first place, and we’re only looking to recover that which you’ve taken without authorization, no data are being taken “out of the information economy.”  Your argument could be used by the burglar, who having successfully stolen the jewelry from our house, also is “wary of taking…out of [his] economy.”

Some Thoughts on Obamacare

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Since the Supreme Court is taking up the Patient Protection and Affordable Act this week, I thought I’d rumble on about it for a bit.  There’s a nearby post of my rumblings on one aspect of the Act, the HHS contraceptives and abortion mandate, nearby.

As Adam White, of The Weekly Standard, points out,

Ordinarily, judges decide cases by applying the text of laws and the precedents laid down in previous cases. But the Supreme Court is no ordinary court, and the cases that it chooses to decide are not ordinary ones. Cases in which the lower courts disagree; cases of utmost national importance; cases for which there is little precedent or the written law is ambiguous​—​this is the Supreme Court’s daily fare.

Indeed.  However, for the Supreme Court, the text of the law can flow only from these sources: the supreme Law of the Land—our Constitution—and the law, here PPACA, as Congress wrote it and the President signed it.  Moreover, the Supreme Court can use that lesser law in its rulings only after finding that law to be constitutional—proper and necessary (not to the law’s purpose, but to effectuate one or more of Art I, Section 8’s enumerated Congressional powers).  If the law is not both proper and necessary, then the Court cannot use it in its ruling but must strike it down instead—and that, generally, becomes the substance of the Court’s ruling.

This is the sum of the present case before the Court: is the Individual Mandate part of PPACA constitutional, and by extension can PPACA without the Individual Mandate survive: is the Individual Mandate both proper and necessary.  Also informing the Court’s ruling, though, are secondary precedents, prior rulings by the Court in similar controversies.  These rulings are secondary precedents because they can only (legitimately) come into play after due consideration of what the Constitution actually says on this matter and then only after due consideration of the law itself—PPACA.

The present case rests on whether the Commerce Clause allows Congress to regulate individual entry into transactions, or whether such decisions can only be made by the individuals involved and only in accordance with the individuals’ own imperatives.  Next, the PPACA as an implementation of that regulation must be both a proper means of implementation—i.e., in conformance with the Constitution—and necessary—i.e., the most efficient and least intrusive means of effecting that regulation.

White goes on make a case for PPACA’s impact on the very structure of our governmental system, and the erosion, if not elimination, of the federalism system we have now, should PPACA be upheld.  In my meager post, I want to stay with the narrower questions: PPACA’s relationship with the Commerce Clause, the Necessary and Proper Clause, and individual liberty.

Commerce Clause argument

The Commerce Clause was well understood to regulate commerce solely among the several States and to regulate only the commerce of a product in being, explicitly excluding the original production of that product, regardless of the purpose of producing it (e.g., for interstate trafficking).  Thomas Jefferson made this point in his February 1791 Opinion… letter to President George Washington concerning the constitutionality of a national bank:

For the power given to Congress by the Constitution does not extend to the internal regulation of the commerce of a State, (that is to say of the commerce between citizen and citizen,) which remain exclusively with its own legislature; but to its external commerce only, that is to say, its commerce with another State, or with foreign nations, or with the Indian tribes.

Plainly, the Commerce Clause was not intended to enable the Federal government to reach inside any State to regulate trafficking, either the State’s internal commerce, or any individual’s commerce, any more than could the government reach inside any of the other Sovereign entities of the clause.

Nor was the clause intended to empower the Federal government to control in any way that inter-State trafficking.  The Federal government was only to regularize, or make uniform, the methods by, and the framework within which, the States with their aggregated trade might engage in commerce with each other and with other Sovereign powers.  Moreover, the trade in question consists in the commercial interactions themselves; it does not include the behavior of engaging in those transactions.  What was regularized was the exchange, and regularization does not include dictating behavior to Sovereign entities, including (Sovereign) individual citizens.

Finally, health insurance, explicitly, is not interstate commerce: the 50 states all have their own mandated requirements concerning what coverages must be included in policies and what range of premiums can be charged for those policies.  And more to the point, those policies cannot be sold in across state boundaries.  PPACA plainly violates all of this, reaching as it does inside each state to require its citizens to obey a Federal mandate to engage in trade at all.  Thus, PPACA fails the Commerce Clause test and is unconstitutional.

Necessary and Proper Clause argument

The “necessary and proper” phrasing of this clause requires that laws, to be legitimate, must be required for the goal to be achieved; further, they cannot be just for any legislative or “worthwhile” desire.  Chief Justice William Howard Taft made this clear the “Child Labor Tax Case” [emphasis mine]:

It is the high duty and function of this court…to decline to recognize or enforce seeming laws of Congress, dealing with subjects not entrusted to Congress, but left or committed by the supreme law of the land to the control of the States.  We cannot avoid the duty even though it require us to refuse to give effect to legislation designed to promote the highest good.  The good sought in unconstitutional legislation is an insidious feature because it leads citizens and legislators of good purpose to promote it without thought of the serious breach it will make in the ark of our covenant or the harm which will come from breaking down recognized standards.

Under the limited government of our social compact, if there are two laws that can be considered, the less intrusive, the less restrictive, one must be the one chosen; the less extensive law meets the need and does not attempt to do more.  Further, to be a proper Law, even if it were the only means of achieving a Congressional goal—necessary—that Law must be strictly fit and suitable: it must satisfy one of the enumerated powers.

Again, PPACA fails.  It is not proper because it’s unconstitutional under the Commerce Clause.

Quite apart from that, though, it’s not necessary because there are a myriad of other, less intrusive, means of addressing the claimed problem of too high, and increasing, health care and health insurance costs.  One method, for instance, would be to regularize the commerce of health insurance across state lines, beginning with allowing that in the first place, thereby allowing competition in this trafficking to bring down costs.  Related to that step is the framework step of requiring policies of differing companies that cover similar conditions to describe those coverages in similar terms, thus to ease consumer understanding.  Related, also, would be the step of disallowing government price-fixing of insurance coverage, including allowing the insurance companies to charge risk-based premiums—which will increase coverage of, among other things, preexisting conditions thus allowing price competition to bring down prices.  And this is just a sample of alternative, less intrusive, less restrictive laws.

Individual liberty argument

The Individual Mandate, by itself, takes away our freedom of choice.  No longer can we choose, for instance, not to buy health insurance and roll the dice on our health—no matter how foolish some might think such a choice.  Instead, Government presumes to choose for us—for our own good: we must buy.  Supporters claim that, since we all will consume health services at some time in our lives, those of us who do so while uninsured are freeloading off those who are insured.  This, though, is a dishonest canard.  There are many cases—my own included—where uninsured consumers pay their own way, entirely, out of their own resources.  And in my case, it was not done out of an abundance of wealth: my family was a bit above the then Federal Poverty Guideline in current income when we paid cash, from our own carefully husbanded-against-the-eventuality resources, for my wife’s biopsy and her subsequent bilateral mastectomy.

The loss of freedom extends far beyond the mere loss of choice concerning health insurance.  If the Federal government can require, under the Commerce Clause or any other rationale, an individual to buy health insurance, then that government can require that same American to buy another product, also (a particular automobile, perhaps).  That government can require that American to not buy yet another product (a firearm, perhaps).  And more generally, that government can require that American to buy, or not buy, on the government’s schedule and at the government’s dictated price.  We will have lost all of our freedom, and all of our control over our own property with this single Act.

What is the limiting principle, the principle that keeps this law from being utterly boundless?  There is no such limit.

Finally, those who argue that Wickard, and the like, will require the Supreme Court to uphold the PPACA must also explain why Brown erroneously did not uphold Plessy, and they must justify an act of naked Federal coercion, at gunpoint, to reverse Dred Scott.

In a just world, the Individual Mandate can only be struck down as unconstitutional. And since the Government has made the Individual Mandate an integral part of PPACA, explicitly eschewing any severability, PPACA must be struck down in its entirety.