Strengthening Constitutional Self-Government

No Left Turns


The General Election Begins

WaPo called the GOP primaries for Romney today, declaring "Mitt Romney's 'veepstakes' begin." WaPo's short-list includes Christie, Jindal, Rubio, McDonnell, Thune, Pawlenty, Ryan, Daniels, Portman and Susan Martinez. I'd halve the list to Rubio, McDonnell, Pawlenty, Ryan and Daniels. Regardless, it is obvious that the primaries are now effectively over. The New York Times also noted today, "Obama, Romney shift to general election."

The race for president shifted dramatically Friday into a general election matchup between President Obama and Republican Mitt Romney as the candidates delivered dueling, sharp-tongued speeches about the president's leadership.

Santorum and Gingrich - and all who hope to see Obama as a one-term president - should now put aside grudges, vanities and distractions in order to support Romney's up-hill battle to unseat the incumbent. The rest of America has moved past the foregone GOP primaries and is focused on the general election - the GOP would be wise to immediately do likewise.
Categories > Elections


I Wonder Why Solicitor General Verrilli...

didn't go with the statements (I won't call them arguments) of Andrew Cohen in this meltdown brought on by the Supreme Court's critical examination of the constitutionality of the federal health insurance purchase mandate.  It is a powerful example of the combination of self-righteousness, confusion, hysteria, and tyrannical spirit that made this week's oral arguments such an unpleasant experience for so many liberal elites.  Cohen has produced a target-rich post, but just a few examples:

1.  Cohen writes, "The Constitution is what the justices say it is, nothing more and nothing less. But this law is clearly within Congress' power"  Well, which is it?  If the Constitution is what the Supreme Court says is it, then, based on Cohen's own premise, it is unclear whether the federal health insurance purchase mandate is within Congress' power and if a majority of the Court votes to strike down the federal mandate, then it will "clearly" beyond the constitutional power of Congress.  But Cohen clearly suggests that the federal health insurance purchase mandate is within Congress' power regardless of what the Supreme Court decides.  We can see Cohen's constitutional nihilism struggling with his self-regard.  The Constitution is what the Supreme Court says it is when the Supreme Court agrees with Cohen.  The Constitution is "clearly" what Cohen says it is when the Supreme Court has the temerity to disagree.  Perhaps this argument is less than convincing to those who share neither Andrew Cohen's ideology nor Andrew Cohen's high opinion of Andrew Cohen.

2. Speaking of Andrew Cohen's high opinion of Andrew Cohen.  Cohen writes of Chief Justice John Roberts  "The chief justice has something to prove to progressives." He flatters himself.  I pretty sure that the proper response to a brush with the esteem of Andrew Cohen is apply bleach to the affected area.
Categories > Politics


The Constitution from 30,000 Feet

Jeffrey Rosen has a nice bit of sophistry in The New Republic.  He suggests, perhaps correctly, that Justices Kennedy and Roberts, were asking the government to point to a limiting principle--something which would allow Obamacare, but would nonetheless not allow the federal government legal authority to do whatever it wanted.  Unfortunately, he says:

[Soliciter Genera] Verrilli's error was substantive: He failed squarely to answer Roberts and Kennedy's repeated questions about what limits he envisioned to Congress's power to regulate interstate commerce. Verrilli's evasions weren't only unhelpful--they were also unnecessary.

Rosen suggests that there is an obvious limiting principle, one that can be discovered in the founding.  "In previous cases denying Congress the power to regulate local activities such as guns in schools or violence against women," he notes, "the Court has drawn a distinction between activity that is truly local and activity that is truly national."

More generally, he quotes a new book by Neil S. Siegel suggesting that the federal government was designed to address any problem that was not local in nature:

"The Commerce Clause is best understood in light of the collective action problems that the nation faced under the Articles of Confederation, when Congress lacked the power to regulate interstate commerce." Siegel argues that "to over-come failures to participate in collective action whose effects spill across state borders, the clauses of Article I, Section 8 authorize Congress to require various kinds of private action."

Balderdash!  If that was the meaning of the commerce clause, it would not say: "The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

Rosen's argumen views the Constitution from 30,000 feet. Its particular details fade into nothingness and it becomes a plenary grant to address any issue that Rosen thinks is a national one. 

Consider some constitutional arguments of the founding era. In that era, we should note, it was an open question whether the federal government had the authority to build roads, canals, and other such projects. President Madison thought it might be, but in the end, he decided that such projects required an amendment, which he supported.  Whigs disagreed with that. But if internal improvements were constitutionally controversial, it is hard to claim that there would have been any discussion of whether the federal goverment may regulate my visit to my doctor. 

In his Opinion on the Constitutionality of the Bank, Hamilton said that Congress may create a corporation to fulfil the powers listed in Article 1, section 8.  Among those he listed was the commerce clause.  After all, creating and managing a national circulating medium is a national act, by definition.  The key question between Hamilton and Jefferson turned on whether Hamilton was correct to infer a power to create a corporation in the service of the enumerated powers.  It was self-evident that the object was national in scope.

But Hamilton noted that there were very real limits:

The only question must be in this, as in every other case, whether the mean to be employed or in this instance, the corporation to be erected, has a natural relation to any of the acknowledged objects or lawful ends of the government. Thus a corporation may not be erected by Congress for superintending the police of the city of Philadelphia, because they are not authorized to regulate the police of that city

The federal government, even Hamilton, the man with the most expansive understanding of federal power at the time, argued, did not have a general police power.  And what is the police power, classically speaking, the power to regulate health, safety, and morals and other such things.  But Rosen wants to say that, under modern conditions, my visit to my doctor is a national concern. Ha!  To be sure, my doctor may buy products that are shipped interstate. And if the federal government allowed it, it might be possible to buy heath insurance across state lines (that would be nice).  In those cases there would be interstate commerce.   By my visit to my doctor is hardly interstate commerce--unless we allow, as Rosen implies, that there is no such thing as intra-state commerce.

And that brings us to another celebrated case--Gibbons v. Ogden.  That case involved the grant, by the State of New York, of a monopoly of shipping on the Hudson river.  The Court ruled, not unreasonably, that the Hudson is not an intra-state waterway. ItJus has borders on New York and New Jersey, and it ends at the Atlantic Ocean.  Hence such a monopoly grant was illegal.

This case matters because people on the Left often cite Justice Marshall's opinion to justfy an expansive reading of federal power.  Justice Sotomayor quoted it from the bench this week. But we need to keep in mind that the case involved shipping on a waterway that borders on more than one state, and that ends at the ocean. We should also read more closely what Marshall actually said:

Comprehensive as the word "among" is, it may very properly be restricted to that commerce which concerns more States than one. The phrase is not one which would probably have been selected to indicate the completely interior traffic of a State, because it is not an apt phrase for that purpose, and the enumeration of the particular classes of commerce to which the power was to be extended would not have been made had the intention been to extend the power to every description.

A clause that grants the federal government power regarding commerce among the states necessarily implies that there is such a thing as commerce that is local--the very thing that Rosen says does not exist. To be sure, he points to "previous cases denying Congress the power to regulate local activities such as guns in schools or violence against women."  But close observers will note that those are not commercial activities at all.  If my visit to my doctor is interstate commerce, then there is no commerce that is not interstate. 

If that is what the people want, there is a simple remedy, one consistent with the constitution. Amendment. But somehow the amendment clause falls by the wayside in pursuit of the public good.

Rosen's argument is that under current circumstances the health care market is national.  H quotes a Representative from Massachusetts:

A national mandate would free Massachusettes[sic] from being "forced to subsidize through higher premiums and higher Medicare and Medicaid costs the uncompensated care of people in other states who do not have health insurance."

But others might reply that Rosen is attacking the notion that the states in our federal system are laboratories of democracy.  They will have diverse laws, and many different approaches to health care policy. He suggests that a state that passes a policy may not suffer from competition with other states. In other words, he presumes what he is concluding--that health care is naturally a national market.

And that brings us to a point that Walter Russell Mead makes eloquently.  America's health care system is simply too large and complex to be regulated by a bureaucracy in Washington that creates a uniform set of rules for a country as large and diverse as the United States.  Even by his own living constitution model, therefore, Rosen's argument fails.

Categories > Courts

Foreign Affairs

Mass Taliban Protest Hopes to Overrun America's Borders

Thousands are expected to participate in the Global March to Washington organized by pro-Taliban organizations abroad that have called on protesters to march on America's borders Friday as part of Land Day demonstrations opposing American policies.

No, not really. That sort of headline and story couldn't possibly be true. Not in America. But exchange the words Taliban with Arab / Palestinian and America / Washington with Israel / Jerusalem, and you have a Washington Times' story on the situation in the Middle East this week.

The Arabs / Palestinians planning to overrun Israel's boarder have the same intentions toward Israel as the Taliban has toward the U.S. How would you suggest America react if the parody news story above were true and the Taliban were amassing on our border (mortars in hand, no doubt)? Now reflect that this is not a hypothetical question for Israel.
Categories > Foreign Affairs


Who Cares About Trayvon Martin?

The answer seems to be: a lot of people, including the president.

I've been on an island recently (literally, in the Pacific) and haven't been following a lot of news, but two issues seem to be dominating American news and foreign conversation about America: health-care and Trayvon Martin. I had originally wondered if the prominence of a story about a single (undeniably tragic) murder wasn't a ploy by the media to divert attention from the health care case. The CDC reports that there are about 45 murders / day in the U.S., and the Martin case involves contested facts, unclear motives and a suspect of questionable mental capacity. It's likely neither the most egregious nor clearly race-based murder of that week. Nevertheless, Martin is today's Rodney King and has been anointed by the media as their story of the moment.

Since there is a potential race element to the case, all the usual race-hustlers have scrambled to the spotlight in order to bellow their usual litany of victimhood and division. Obama weighed in on the matter last week ("If I had a son, he'd look like Trayvon Martin.") and has been widely criticized by conservatives for his seeming partisanship. I'm slightly sympathetic to Obama. He didn't make this a national story and probably wasn't overjoyed to be asked a question on the subject. He answered by expressing personal empathy to grieving parents. Of course, he didn't express sympathy for the man who might have been forced to shoot a delinquent child in self-defense - which could be interpreted as revealing which version of the facts the president believes. Given his record on racial issues, Obama knee-jerk sympathies certainly run toward Trayvon Martin. But he would have been criticized for silence or nearly anything else he was likely to say, so why not err on the side of his political base?

The problem is not that the president spoke, but that he was expected to speak by a majority of the nation. Other families of murder victims are now asking the president to speak out on behalf of their lost loved-ones. I don't think we need a daily litany of the newly departed from our chief executive. But the media has made this a story and daily stokes passions by granting a microphone to the likes of Jesse Jackson and Al Sharpton. Mass demonstrations, race tensions and calls for violence have been artificially instigated by the media's sensational promotion of this incident. Again, while tragic, this story is neither unique nor objectively deserving of national attention - the media simply wanted to create a national debate on race and gun laws (recall the immediate focus on "stand-your-ground" laws). The media control the national conversation, for better or worse - usually the latter.
Categories > Journalism


What Part Of 'Because I Said So' Don't You Understand?

So it looks like Solicitor General Verrilli was shredded by the Supreme Court Justices yesterday on the question of the federal health insurance purchase mandate.  Many liberal journalists are shocked at his inarticulateness.  Liberal journalists should blame themselves a little.  The arguments advanced for the federal health insurance purchase mandate often came down to some combination of "only mean people oppose nice President Obama's law" or "all really smart and honest people all agree with smart and honest me that Obamacare is like so totally constitutional."  Dalia Lithwick's tantrum is an example of the first kind of argument and Jonathan Chait's rant is an example of the second.  Lithwick's post is less interesting.  It doesn't contain any actual arguments about why the Obamacare mandate is constitutional.  She mostly just says that only a horrible person would even think about considering whether such a wonderful law as Obamacare is constitutional.  I wonder why Solicitor General Verrilli didn't go with that strategy during oral arguments.

Chait's post is a more telling example of how self-congratulation and group think can weaken one side's argument.  Chait writes that the health insurance purchase mandate must be constitutional because health care is interstate commerce and the federal government must therefore be able to compel an individual to contract with a private firm to purchase a product they do not want.  Chait specifically takes on the activity/inactivity distinction.  Chait argues that the government does regulate inactivity in that it mandates vaccinations and sometimes compels military service. The federal government derives the power to draft from the power to raise armies and navies rather than the interstate commerce clause.  The states (not the federal government) have the power to compel vaccinations from the general police power that the federal government lacks.  That is why the Supreme Court is very unlikely to strike down the state-level Romneycare insurance purchase mandate and more likely to strike down the federal-level Obamacare insurance purchase mandate (one can imagine circumstances where the federal government mandates vaccinations for certain classes of citizens - soldiers for instance.) 

The problem with all of this wooly thinking is that it leaves one badly prepared when one steps out of the bubble of the likeminded.  Imagine if Solicitor General Verrilli had said something along the lines of "Well of course the interstate commerce clause gives Congress the power to force people to buy health insurance.  Congress has the power to draft don't they?"  Even the liberal Justices would have laughed at him in horror and disgust.  Solicitor General Verrilli couldn't say "Well sure transportation is an interstate industry and everyone participates in transportation markets, so therefore Congress has the power to mandate that every American contract with General Motors to buy a Chevy Volt or else pay a civil penalty."  That stuff works when you are around the campfire with people who really really want the Supreme Court to uphold Obamacare.  It works less well when you are in front of Supreme Court Justices who are under the impression that the Constitution created a federal government of limited powers.

So Solicitor General Verrilli did his pitiful tap dance about how the health care market is "different" and how the federal government has the power to compel you to buy health insurance but not a cell phone or burial insurance.  And the result was that the more conservative Justices pounded him into the ground.  The problem wasn't Verrilli.  It was the quality of his arguments.  And that leaves Lithwick and Chait to explain that only meanies and poopyheads disagree with them.

Before you laugh at Lithwick and Chait, keep in mind that Justice Kennedy might find their arguments (which are attacks on the status of those who disagree with them) more convincing than the constitutional arguments of the Solicitor General.       
Categories > Politics


Obamacare, RIP?

Should the individual mandate have bought burial insurance? See p. 7 (Justice Alito's question) of the transcript of day two of the Obamacare oral arguments before SCOTUS.
Categories > Courts


Anthony Kennedy and Status Rewards

My read of the Obamacare oral arguments at the Supreme Court is that it comes down to Anthony Kennedy and that Kennedy is facing a tough calculation.  It looks like Kennedy is leaning in the direction of thinking that the Obamacare federal health insurance purchase mandate is an unconstitutional expansion of federal power, but that he is also desperate to find some kind of an out that will let him uphold both the mandate and whatever idea of constitutionally limited government Kennedy carries around in his head. 

Well if he thinks the federal mandate is unconstitutional, why not just say that it is unconstitutional?  I think some of it has to do with status rewards.  One of the reasons I was pretty confident that the House Democratic leadership would attract enough wavering members to pass Obamacare was because liberal-dominated institutions would be able to provide safe landing spots and decades of ego rewards to members who voted for Obamacare and lost their next election.  Lose a House seat, gain a professorship, an ambassadorship, or a Profiles In Courage Award.  I think Kennedy might be looking at the flip side of this liberal cultural power.  The center-left has been desperate to gain government-run health care for decades.  Kennedy must know that if he strikes down the Obamacare mandate, he is going to go down as a historical villain in all of the institutions controlled by the center-left.  This will be much bigger than his decision in Bush v. Gore and his opinion in Lawrence won't gain him any clemency for his crime of smashing the center-left dream of government-run health care.  If he votes to strike down the mandate, who-knows-how-many law professors, NPR legal commentators, and New York Times editorial writers will abominate Anthony Kennedy's name to his grave and beyond.  He shouldn't care about that, but I fear that he does.  I fear that the constitutional argument over Obamacare won't be won on the legal merits.  The fate of Obamacare might come down to a contest between Kennedy's intuition that the federal mandate is unconstitutional, and his dread of the backlash in liberal-leaning institutions like the legal academy and the mainstream media.
Categories > Politics


Podcast and Colloquium with David Tucker

I recorded a podcast last week with David Tucker who has been visiting Ashland for most of the past six months or so.  We discussed many things, but primarily his new book, Illuminating the Dark Arts of War: Terrorism, Sabotage, and Subversion in Homeland Security and the New Conflict.

David also discussed these issues with the Ashbrook Scholars on Friday at a colloquium.  They, too, had a good conversation which you can listen to here.

Categories > Military


An Italian on the Austrian Economist

Alberto Mingardi directs the Italian free-market think tank [yes, there are a few] Istituto Bruno Leoni. In the WSJ, he channels Friedrich Hayek to critique of the European Union.

Centralized welfare systems are necessarily run by a bureaucratic leadership that cannot master the knowledge needed to manage a complex society.

As Mingardi notes, "Hayek is often associated with his critique of socialist systems."

There is, in society, a "knowledge problem": Economic life requires the coordination of individual planning. The relevant knowledge for economic planning is dispersed rather than concentrated in society. If this makes coordination challenging enough in a market system, it also makes coordination a virtual impossibility under central planning: The planner can never secure and process all the necessary information to provide detailed guidance to any given development in society.

Mingardi applies Hayek's critique to "hard-core socialism" and "the soft-core version widely adopted by European democracies," arguing that the bureaucratic leadership of centralized welfare systems simply cannot micro-manage a complex society. The result is inevitably inefficiency and waster - but the temptation to be the party of welfare is clear:

These inefficiencies and this waste, of course, become rents for those that live off them and return the favor with their political support.

Mingardi effectively compares market and social models of democracy in light of the realities of European bankruptcies. The entire article is worth a read.

Categories > Economy

Health Care

HHS Mandate via Puerto Rico

First, they came for the Puerto Ricans.  The HHS mandate requiring sterilization and birth control coverage in health insurance was anticipated in the New Deal policy toward Puerto Rico. It is now plain how New Deal and successive leftist social engineering embraces all aspects of political, commercial, and family life.

The recent Republican presidential primary in Puerto Rico drew attention to this constitutional oddity--a commonwealth/colony of American citizens. But the contenders overlooked the most significant element of recent Puerto Rican history for American politics today.

Franklin Roosevelt appointed one of the architects of the New Deal, Rexford G. Tugwell as its Governor.  Serving from 1941-46, Tugwell followed Progressive ideology and transformed the University of Puerto Rico into a think-tank for liberal reforms for the island. He established a decades-long practice of using Puerto Rico as a laboratory for liberal policies, including birth control through sterilization and the pill.  

According to one historian (JSTOR link), heavily Catholic "Puerto Rico became the chief testing ground for the birth control pill."  For a while more women were sterilized there than in any other country in the world. These population control measures, tied with economic reforms, were intended to make Puerto Rico a "showcase for democracy" in the Cold War, a model of enlightened policy toward developing nations.

Bored by their lack of progress, scholars of Puerto Rico such as Oscar Lewis (author of the classic study La Vida) turned instead to that more exciting example of Cuba.

We don't need West Side Story to know that Puerto Ricans "like to be in America." But what happens when America becomes another Puerto Rico?

Categories > Health Care

Health Care

Healthcare in the Court

Three days of oral argument over the constitutionality of Obamacare begin Monday. C-SPAN will replay the oral argument later in the afternoons. It should be kept in mind that the reason we are even talking about the possibility of the Court overturning the law is one justice: Clarence Thomas (no relation to me, incidentally). The New Yorker gave this explanation of Thomas's key role in changing the Court last year.

Toobin writes several silly sentences but note the core of his argument, a warning to the left of his dangerous powers:

In several of the most important areas of constitutional law, Thomas has emerged as an intellectual leader of the Supreme Court. Since the arrival of Chief Justice John G. Roberts, Jr., in 2005, and Justice Samuel A. Alito, Jr., in 2006, the Court has moved to the right when it comes to the free-speech rights of corporations, the rights of gun owners, and, potentially, the powers of the federal government; in each of these areas, the majority has followed where Thomas has been leading for a decade or more. Rarely has a Supreme Court Justice enjoyed such broad or significant vindication.

Conservatives should keep in mind that Thomas was nominated by a president not particularly beloved among conservatives--yet a man who stood by him when he came under vicious attack.

Categories > Health Care