Strengthening Constitutional Self-Government

No Left Turns

How to think about legislation

Tom Maguire notes an interesting turn in the debate over health care. Liberals like Ezra Klein complain that conservatives are complaining about things that are not in the bill:
Danielle Allen's op-ed this morning. Discussing the insistence of some that health-care reform will result in rationing and death panels, Allen chides those who respond with an accurate description of the legislation. "One can't answer them by saying: 'These policies won't ration; there will be no death panels,'" she writes. Instead, reformers must detail the "institutional checks that will prevent the emergence" of death panels and rationing.

In other words, the questions reformers have to answer is not "when did you stop beating your wife?" It's "what will prevent you from beating your wife?" Given that there is no such thing as a "death panel," nor any policy provision that would establish such a thing, it is hard to explain the institutional checks that would prevent a "death panel" from coming into being. When you have to explain why your bill won't create death panels, and what will make sure that it doesn't, you've pretty much lost the argument.

(Here's a link to Allen's piece).

This argument raises interesting questions about how to think about legislation. As I understand him, Klein is looking strictly at the text of the bill, and thinking about what the bill is designed to do.

By contrast, Allen is thinking about the likely consequences of the bill:

These activists do not claim that the proposed reforms include policies whose explicit purpose is to ration, nor do the more careful among them claim that the policies will establish panels to help people decide when to die. They are not arguing about the semantic content of the policies; that is, they are not arguing about the meaning of the words that are actually in the relevant drafts of bills. Instead, they are considering, as the pragmatist philosopher William James put it, "what conceivable effects of a practical kind the [policy] may involve -- what sensations we are to expect from it, and what reactions we must prepare."
For a couple of generations, there has been much discussion of the "unintended consequences" of legislation. Allen is suggesting that these consequences are often predictible, and, therefore, it is not unreasonable to discuss legislation from the standpont not of its intent, or of its explicit language, narrowly construed, but, rather, in terms of its likely consequences. Isn't one point of Cass Sunstein's Nudge that human beings are often irrational in predictable ways. As the recent financial crisis shows, as do countless tales of mistakes by government, that is no less true of elites than it is of the common man. That predictable irrationality would, presumably, also apply to understanding the consequences of legislation.

Quite often the rancor in public debate turns on this distinction between a narrow and broad reading of legislation, with the result that each side thinks the other is arguing in bad faith. Thus it long has been, and probably ever must be.

Discussions - 13 Comments

Great post. It puts me in mind of Hubert Humphrey's famous promise that if the Civil Rights Act of 1964 were to lead to quotas (as Barry Goldwater and others insisted it would) he would eat the pages on which the law appeared in the statute books.

So much for strict constructionism on the right. I sense some empathy creeping into your deliberations on legislation.

It is as if he thinks that these bills are straightfoward. What he says would be true if they were, the problem is with tyranical monstrocities like Patriot Act, Banker bailout or this is that they are written with obscure terms where no one knows what they mean untill it get hashed out in the courts years later.

Did Humphrey eat those pages?

Here is something that Chuck Norris of all people is noting that is in the bill. It is something that sounds sort of good, untill you put any thought into it. Can his tears cure the republic?

Anti spam strikes again: Nov adolf, who programed the code for this thing?

Unintended consequences? How about the Massachusetts Equal Rights Amendment? Phillys Schlafley said it would someday lead to homosexual marriage , for which she was called a delusional liar. Who was delusional and lying?

Hannity just featured Paul Rodriguez and his peeps, mostly Latino farmers in Central California. Their once-thriving thousands of acres of almond trees have been turned into firewood by unintended consequences, liberals protecting the ditch carp. The fish are fine, but liberals have turned the place into a Dustboewl by Decree. No crops, no property value, no jobs. We won't even mention what unintended consequences did to black families.

As Brutus pointed out, this health bill is chock full of crap: The govt. stopping by to check on your parenting. Gifts for trial lawyers. Boards that will decide later on what plans must carry. Do you doubt they will mandate all plans cover abortion? Or sex-change operations?

It's not abouts costs. It's not about covering the uninsured. It's about control. period.

Sarah Palin was talking about rationing. The Death Panel are the people that will make decisions about what care is denied/rationed. I would think that rationing would go without saying. It's 100% guaranteed. Everything is rationed unless there is what ammounts to an unlimited supply. It's a bad idea to eliminate the market forces that make things efficient and to create either single payer or quasi-goverentment co-ops.

Once structures are established (whether they be programs, bureaucracies, regulatory schemes, whatever) it is relatively easy to change their purpose, especially if such purposes are put into the hands of appointed functionaries not immediately subject to the electorate. Congress, the president, and the elite statists know that: the rest of us, it seems, are starting to figure that out, too. A century and more of relentless federal-government mission creep was bound eventually to get noticed for what it is: relentless.

Charles Murray has an interesting piece in the WSJ about what is real or realistic about government. He complains theat politicians hide behind these obfuscations. Just as everyone seems to be complaining here. How do we repair this? I mean really.

We repair it by never again abandoning the current posture of suspicion and distrust about anything the government proposes.

Brutus, I have been in that position since I was 16 years old. I am 56 now. I think you may be mistaken in the efficacy of the stand. There has to be something more.

That's how you repair the hiding behind obfuscations. How you repair the country is probably through a second civil war. I wish there was another way, but I don't see the current regime (not talking about Obama, more like Goldman Sachs and the others who either own our leaders or are our leaders, like Bush [prescot made some interesting banking deals in his day]) letting go of power without a shooting war with the public probably after a series of false flag terror acts made to look like the work of 'right wing extremeists.' The Southern Poverty Law Center is ramping up its right wing/white supremicists warnings, the last time that happended OKC federal building blew up. It is funny that all the info for the DHS report on right wing extremism came from them or one strange website that claimed the USA and Russia were in a secret war over a device to communicate with aliens. Thanks government for being so thurough before you condemned Ron Paul supporters as terrorists.

It's more than just the unintended consequences of the legislation that have people angry. It's the substantial evidence (all denied) that this legislation has INTENDED consequences that go far beyond what the language of the bills calls for. We have Barney Frank and Obama both on record as viewing single payer as the ultimate goal but acknowledging they cannot fashion a bill now to implement that. Both indicate, Frank very explicitly, that the public option is meant to bring about single payer. In the face of this evidence of a purposefully deceitful bill, the public is right to be paranoid about all the other intended yet denied consequences embedded in it.

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