America is Communist: Healthcare the Supreme Court edition

Akhil Amar wrote the books that all law dorks – left and right – love. He’s a lefty, but his devotion to the actual text of documents has made him popular on the right.

In his book on the Constitution, he goes through the document line-by-line and explains what the lines have come to mean. My basic complaint with this is that by sticking to the actual text of the Constitution he misses everything in the unwritten constitution that actually governs the country. For example, in reading the text of the Constitution, you will find that no changes to the text were made during the FDR revolution, when the entire system of government was changed. This absurd result renders textual analysis of the Constitution akin to debating the number of angels that can fit on the head of a pin (or akin to worrying about what the Roman Senate thought of Imperial policy). If you’d like another take on this issue, here’s Moldbug’s:

Britain, of course, is famous for its unwritten constitution – a phrase which strikes the worm-gnawed American brain as oxymoronic. In fact, unwritten constitution is a tautology. It is our written constitution – or large-C Constitution – which is a concept comical, impossible, and fundamentally fraudulent. Please allow me to explain.

England had a constitution well before America had a Constitution, and De Quincey (whose political journalism is remarkably underrated) defines the concept succinctly:

…the equilibrium of forces in a political system, as recognised and fixed by distinct political acts…

In other words, a government’s constitution (small c) is its actual structure of power. The constitution is the process by which the government formulates its decisions. When we ask why government G made decision D1 to take action A1, or decision D2 not to take action A2, we inquire as to its constitution.

Thus the trouble with these written constitutions. If the Constitution is identical to the constitution, it is superfluous. If the Constitution is not identical to the constitution, it is deceptive. There are no other choices.

It’s easy to show that the latter is the case for USG. For example, the two-party system is clearly part of USG’s constitution. But not only does the Constitution not mention political parties, the design notes indicate an intention to preclude them. Obviously this was not successful.

For another example, American law schools teach something called constitutional law, a body of judicial precedent which purports to be a mere elucidation of the text of the Constitution. Yet no one seriously believes that an alien, reading the Constitution, would produce anything like the same results. Moreover, the meta-rules on which constitutional law rests, such as stare decisis, are entirely unwritten, and have been violated in patterns not best explained by theories of textual interpretation. Thus the small ‘c’ in constitutional law is indeed correct.

In retrospect, the written-constitution design is another case of the pattern of wishful thinking that appears over and over again in the democratic mind. From the perspective of a subject, political stability is a highly desirable quality in a sovereign. We should all be ruled by governments whose constitution does not change. The error is to assume that this outcome can be achieved by simply inscribing a desirable constitution. This is a quick dive off the pons asinorum of political engineering, the quis custodiet problem.

Recently, progressive overlord Ezra Klein interviewed Amar on whether there is a limit to the government’s power. Amar claims that there is some limiting power, but the more he tries to describe the limit the less clear it is what he’s talking about. He eventually gives up and says that government’s power is limited only by the fact that if elected representatives do certain things, they’ll be voted out of office (which if you think about it isn’t actually a limit). Here’s the gist:

The most important limit, the one we fought the Revolutionary War for, is that the people doing this to you are the people you elect. That’s the main check. The broccoli argument is like something they said when we were debating the income tax: If they can tax me, they can tax me at 100 percent! And yes, they can. But they won’t. Because you could vote them out of office. They have the power to do all sorts of ridiculous things that they won’t do because you’d vote them out of office. If they can prevent me from growing pot, can they prevent me from buying broccoli? Perhaps, but why would they if they want to be reelected? So if you ask me what the limits are, I’d say read McCulloch vs. Maryland. And reread it. And keep reading it till you understand it. The Constitution is a practical document,. it’s designed to work. And the powers are designed to be flexible in order to achieve the aims of the document.

Amar tries to argue that the words of the Constitution are the limiting power, but that’s absurd. Words on papers limit nothing. Amar’s own analysis of the Constitution is no longer relevant after the 1930s, when progressives stopped bothering to amend the Constitution when they changed its meaning. (I hate to defend progressives of any flavor, but at least the old school ones changed the Constitution, even if they ratified their changes by force).

Sonic Charmer has some good analysis of the healthcare issue with respect to the Constitution. First, Amar obviously doesn’t believe his own analysis. Second, everyone always participates in all markets – so suggesting that the words "interstate commerce" are necessarily limiting (as Amar suggests) betrays a lack of understanding of how markets work. Third, the slope is slippery. Finally, the result is a communist economy.

Aretae also has some interesting analysis of why progressives are surprised that they may lose on Healthcare at the Supreme Court:

I think that progressives/liberals had thought they’d won. We are on the right side of history, and the direction is settled. If the government wants to do something, it can. So says precedent since the New Deal. It’s a settled issue. Sure, that overlooks a lot, but given Raich, and Kelo, and, hell, damn near everything since Wickard (Commerce Clause) and Miller (2nd Amendment). Since 1937, it has been the clear position of the court that in most cases not involving religion, the federal government can do whatever it wants. And my read says that (a) they are right, and (b) for most of the last 75 years, the supreme court has completely failed to act as a substantial check to congress.

The libertarian position is substantially different (can’t speak for conservatives). We hold that the government has been slowly (and improperly) encroaching on the proper understanding of the constitution as a document whose primary purpose is to limit the power of government to screw it’s citizenry.

I wish that this was true, but it’s wishful thinking.

Progressives have won. No one disputes that USG can take all your money and use it completely own the healthcare market. Medicare, for example, is legal. The only issue under dispute is whether healthcare can be nationalized in this particular way. Even if it can’t, the result is the hollowest possible victory for non-progressives: congratulations, the healthcare industry must be fully, not half-assedly, nationalized. Victory!


7 Responses to America is Communist: Healthcare the Supreme Court edition

  1. Handle says:

    Iowahawk actually has a characteristically clever quip about all this, “The Constitution, a pre-existing condition that doesn’t cover Obamacare”. Made me smile, even though our descendants will laugh at any faith some place in the durability of this current speed bump on the inevitable way to a full US-NHS.

    But the “equivalence” argument really highlights the difference between Economists and Lawyers (I’ve had a foot in both worlds so the contrasts are perhaps more salient to me). To Economists, logical and ration, “equivalences” are key. If we agree that the government could legally, “constitutionally”, tax everyone at any rate and use the money to provide everyone with government health care (and how much of a tweak of Medicare/Medicaid would it be, really?), then how can it make any analytical difference how, or, by what byzantine mechanisms the government accomplishes an identical result as a way to deceive the gullible, “silly differences in word choice matter immensely” populace and sugar the bitter pill and get it down their stupid throats?

    “Penalties” vs. “Taxes”? “Subsidies” vs. “Community Ratings”? “Commerce Clause and Taxing Power” vs. “Individual Mandate”? What’s the difference? If you can find a legal way to do X, then anything which uses the power of the law to move money and goods and services around in the same way as X should also be legal, no?

    And to the lawyer, the answer is “Ha! Didn’t you know? We’ve created a system in which framing, word-choice, and the particulars of procedure matter and practical “equivalence” is meaningless. And what matters most of all is the ability of judges to have and preserve supervisory power and continue to shape these outcomes as they see fit. Back to the drawing-board!”

    The part about Amar is key and highlights the real debate (or charade of a “debate” about which the Obamacare case is only an instance. It is more popular and effective for modern Progressives to deny what their predecessors explicitly and overtly desired – an entirely reinvented “Constitution” and structure of State power and government. Instead, current Progressives pretend to have alleigance to something called “The Constitution” and to precedents of various court decisions they like.

    This pretense requires them to also pay lip service, even in a grudging tone, to the idea that somewhere, somehow, the “document” limits the power of government. When asked to define these limits or announce coherent “limiting principles”, they are, of course, at a loss, since they don’t actually believe in any constraints besides the fundamental Leftist principle of the last century or so – “The government can and must do whatever we want it to, and it cannot do what we don’t like”.

    I’m reminded of this Moldbug line:

    It’s easy for your arbitrary belief system to connect itself to the Founders. If the Founders agree with you, you are following in the footsteps of the Founders. If the Founders disagree – they would have changed their minds. Americans have spent two centuries learning to play this blithe little game, great sport of a wonderfully Jesuitical nature, and has allowed each of the various modern American ideologies to craft its own Founders and its own Old Republic.

    • But dude, don’t you see they are actually coming out of the woodwork? After all the rancid sophistry, Amar conceded that voting politicians out is the only limit! They wouldn’t have dared say this couple decades back. Are we reaching the end times?

  2. Moldbug’s despair is pretty convincing, but it’s not advice or policy and it seems too vague to really be called prediction. Of course hard times are ahead, this year, or not. Inflationary or deflationary. The Federal government will collapse or get much more powerful, etc.

    I really don’t know how anyone who shares Moldbug’s explanation of why democracy sucks could accept neocameralism, the patchwork, or any of that. Those systems create common-stock governance, with boards of directors elected by stockholders electing officers.

    Elections will always be manipulated, for the worse. No reason to put the “… in a democracy” caveat on the end of that sentence. Take away the bad old court system and you need to replace it with something.

    Nothing wrong with what Moldbug has to say, since unfalsifiable assertions can be interesting. If he really believed what he said I doubt he would have had children.

    • Foseti says:

      There’s nothing wrong with elections per se. It just depends on who’s voting. If voters have good incentives, are held responsible for their decisions, and are relatively limited in number, the process can work just fine.

  3. […] – “Review of “The 48 Laws of Power” by Robert Greene“, “America is Communist: Healthcare the Supreme Court Edition”DW – “The Different Shades of Dominance“, “Reality: The Great Enemy […]

  4. […] Where have I heard that before? […]

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