Sunday, July 1, 2012

Laws and Light-mindedness

One of the more settled and satisfactory of the human sciences  is the history and theory of the Law.  It has a foot in Logic, a foot in Natural Theology, and (think tripod here) another in Sociology:  it is well-braced.  And throning at the apex of this edifice is the field of Constitutional Law, one of whose practitioners now resides in the White House.  Each weekend on the radio, you can hear a broadcast from earlier years, of arguments before the bench of the Supreme Court:  these are invariably intelligent and to the point.   That in itself is remarkable, for so happy a state of affairs does not widely prevail in the world's legislatures and parliaments.  Our own Senate does insist on decorum, though not substance;  in the Supreme Court, you get both.  For no matter how outlandish, self-interested, or yokelish may be one party to the case, as an attorney representing them, once you step through the portals of the Court,  scholarship and analysis reign, and you have to play by those rules.  So this should be a Renaissance moment for public discussion about the law.  But alas not so.

One reason that legal reportage tends to be scanted in the MSM (Nina Totenberg is an honorable exception) is the inherent difficulty of presenting what is  a complex historical and logical construct of ideas.    A case that has wound its way through the lower courts, all the way to the top, is as difficult to summarize and analyze for the layman, as a chess tournament:  which is why both tend to get reported as though, rather than a matter of shared case-law (for chess as well has an analog -- the lore of openings and “chess precedents”) and clashing analysis, they were a football match, or a lottery, or a Broadway musical.   Politics and personalities are trumps.  In the recent Obamacare decision,  Roberts’ vote is oohed and aahed and wondered-over, as though it were the latest escapade of Tom Cruise or Charlie Sheen.   Otherwise-sensible commentators  speculated that the vote was merely a cynical, tactical move, so that next time around he could savage affirmative-action, or what have you.

(An example of the personalistic, legal-reasoning-free treatment, from the reliably middlebrow Tom Friedman:

Here is an alternative hypothesis:  The guy went to law school;  maybe he learned a thing or two.  And one of the first things you learn when you set out to become a judge, is that your normal role is to interpret and apply existing laws, not to overturn them on a whim.   Especially when the law was passed by both houses of the highest legislative body in the land: after significant and extensive debate, and that quite recently.
(That last proviso is relevent in light of the rare case in which some old forgotten law is still on the books -- say, one antedating the Civil War, stipulating that negroes shall wear a yellow bandana when straying more than a mile from their owner’s plantation.   The will of the contemporary legislature would get short shrift today.  Or, occasionally a legislature will pass a clearly misconceived law without debate, to pander to the moment, knowing that the law will be overturned.  That is not the case here.)
[Update 26 VII 2012]  This morning, NPR broadcast an enjoyable interview by Ms. Totenberg with Justice Scalia, upon the occasion of the publication of his new book.  During the course of this, he said:  "Read my lips :  stare decisis."
(As the former Editor of Pronunciation for Merriam-Webster dictionaries, I must report:
He pronounced it STAH-ray de-SIGH-siss.)

That sets a high bar.   And here, the question was not one of interpreting an existing law in light of new circumstances (say, some lab revives Neanderthal DNA;  so does the law now apply to the newly-numerous Neanderthals?), but rather, whether to strangle it in its cradle.

Before proceeding, a logical note:   The argumentation here is entirely independent of whether this particular law is wise or well-drafted.   Such factors sometimes do enter (as, whether a law is “unconstitutionally vague”), but they were not the gravamen here.   The principal accusation here was that the law is tyrannical -- the government usurping powers it does not have and should never have.

And that is a difficult case to make out. For:

(1)  The Federal government has long been permitted to conscript able-bodied young men, upon pain of imprisonment, and send them off to be killed or maimed or captured in foreign wars, even in cases where the United States was not itself under attack -- Korea --, and where, in addition to the lack of threat to CONUS, the war itself was launched under false pretenses  -- Vietnam (the Tonkin Gulf charade; and the ignoring of the lessons of the French experience before us).  Indeed, the latter episode was extraordinary, since the U.S. did not actually even declare war in that case, both parties cravenly complicit in a conspiracy to wage war while not daring to step up to the plate and say so;  in light of this, the legality of the draft was problematic, but it went unchallenged.
Against such a background, who can cry “Tyranny” for a piss-ant matter like requiring health insurance? Puh-lease ...

(2)   Suppose, bracketing the argument in (1),  you somehow decide that requiring citizens to take out health insurance is indeed an unjustified tyranny.  But what’s sauce for the goose is sauce for the gander.  What about the requirement that all drivers take out automobile insurance?  The arguments for the requirements are virtually identical;  yet the latter goes uncontested.  (This simple and intuitive comparison seems so obvious, it's a wonder it has not become a commonplace in this house-of-mirrors debate.)
Indeed, given the uncontested validity of the auto-insurance requirement,  the logical step would be, if anything, an expansion of such  requirements:  say, to require those who build homes (often vacation homes) in harm’s way -- floodplain, seashore, wildfire country -- to take out flood or fire insurance, since they regularly troop off to Washington with their beggar’s-bowl, demanding that taxpayers pick up the tab.

(3)  Averting our gaze from such arguments from analogy, and focusing strictly upon the matter of paying for health-care, let us consider one of the principle objections to the law:  from healthy young persons,  complaining that purchase of such insurance does not make economic sense for them personally, and that it should be up to them.  (On similar grounds, I regularly decline offers of, say, lawnmower insurance.)   To this, two counter-arguments.
            (a) Their objection is rather like that of motorcycle riders who demand the freedom to ride without a helmet, and conceals a similar duplicity.   For, so soon as the previously healthy person comes down with cancer or whatever, and so soon as the biker sustains brain-damage, they too will be out at the doors of the taxpayers, demanding to be made whole.
            (b)  More strikingly : Historically (pre-"Obamacare"), your health-insurance payments store up against the day when you -- healthy though you presently be -- may need care; for flesh is grass.   The benefits, when needed, accrue to you.   How then is this an imposition, compared with the taxes and surcharges you already pay, not for your own potential future care, but for the present care of others, unrelated to yourself, namely those who do not pay their bills?  No-one has, to my knowledge, challenged the legality of that.


  1. In the UK where we have instituted the socialist notion of a National Health Service we spend a very significant proportion of the GDP on it and complaints about the levels and standards of service are rarely out of the press. However we often look at the US and other systems and shudder when we try to work out how in the name of God you manage without something similar. For all its faults an NHS is indispensible.

  2. Agree. NHS is a single-payer system, which cuts out the middleman, and thus genuinely saves waste. That is -- arguably -- what we need here in the U.S. But on this blog, I generally shun the merely arguable, and hew to the inarguably logical.
    -- BTW, your comment is quite intelligent -- why hide behind “Anonymous”? Can’t you at least offer an icon of a hamster or something???

  3. A lot of people complain that our socialized medicine plan will be like what members of the military experience: really poor treatment by under-qualified doctors coupled with long waits.

    I will say in defense of that concept that while some of my waits were long, I was always seen. When my tooth hurt, I got the cavity filled, and I got preventive care via regular cleanings. When I couldn't read the ESPN ticker, I got glasses (ugly glasses, but I could see). When a joint stopped working as intended, I was seen regularly in an attempt to figure out why and to manage pain.

    I know far too many people who are not receiving preventive care who do have health insurance. Isn't some (even if it's not top-notch) better than none?