Turn the Beat Around...

Apologies to Gloria, but that tune is what I hear playing out in the legal arena these days, and hopefully it's a song that will live long and prosper...

Turn it up, turn it up, turn it upside down
Turn it up, turn it up, turn it upside down
Turn it up, turn it up, turn it upside down
Turn it up, turn it up, turn it upside down

Turn the beat around
Love to hear percussion
Turn it upside down
Love to hear percussion
Love to hear it...

I admittedly am getting a kick out of the mainstream media playing legal expert on these Constitutional issues. Lil E apparently isn't the only one who'd just scrap the Constitution as irrelevant today, some musty old unvalued document written by old dead white men who didn't appreciate the power of diversity and had no idea the struggles the republic would face in the complex 2st century...

The common-sense case goes like this. Contrary to what Justice Kennedy said this week, no important principle is at stake in this decision. For all practical purposes, the economic power of the federal government is no longer constitutionally constrained. By using its tax power, the federal government already forces you to save for retirement (Social Security), insure against disability (ditto), provide for health care in retirement (Medicare), and pay for all manner of stuff you may neither need nor want. The government could perfectly well use its tax power to pay for universal health insurance. Obamacare is a milder dispensation in terms of personal liberty than tax-and-spend schemes that are already in place or any number of tax-and-spend alternatives to Obamacare that would immediately pass constitutional muster.

Am I forgetting the Broccoli Question? If the government can force you to buy health insurance, what can't it force you to buy? The common-sense answer to this, as we've just seen, is straightforward. Nothing. The government can make you pay for whatever it likes--that's where things already stand, and striking down the mandate won't change it. The Constitution as interpreted by the Court these past decades allows the federal government to put your taxes up and use the proceeds to send you a weekly box of broccoli. If Washington instructed you to choose your own basket of fruit and vegetables or else pay a penalty, that would be a smaller infringement of your freedom than the Constitution already allows.

As a practical matter, in other words, there's no "limiting principle". As a legal matter, of course, the Justices who see Obamacare as good policy will bend over backwards to devise one, and those who see it as bad policy will find grounds to be unpersuaded. Justice Kennedy has already told us what this lawyerly criterion could look like.

But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets -- stipulate two markets -- the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.

"Uniquely proximately very close." Well, something along those lines. But in worrying about whether a relatively liberal method of making you do something is constitutional, having previously determined that a less liberal method of making you do the same thing is perfectly fine, the Court is concerning itself not with an important principle but with a legal technicality. That's not to criticize--it's what courts do. The funniest part is that everybody understands this. If the mandate is struck down, Congress (voters permitting) could turn round and make the penalty a tax, and that would be that. Important principle my eye.

Key point: voters permitting.

Now of course you can ask whether the Court has been right over the years to use the Commerce Clause to turn the Constitution inside out and dissolve the limits on the economic power of the federal government.

Lol-- oh, that's rich. "Of course" we can ask.

That's not an easy question but on the whole I think it has in fact been right. The world has changed, and what we expect of the government has changed. The Constitution had to change as well, and that could be done either by amending it explicitly or having the Court draw on all its reserves of ingenuity and rewrite it judgement by judgement. In America, the Constitution is a quasi-religious document. Its constancy is an inviolable national myth. Changing it therefore falls to the Court and must be done by stealth, with a certain suspension of disbelief on the part of the citizenry. The big disadvantage of amendment by jurisprudence is that it takes an unavoidably political task out of politics and gives it to unelected judges. Obviously, that's also its big advantage.

Whether we like the way the Constitution has been rewritten is beside the point. The thing is, it has been. The Court has all but erased the limits on the economic power of the federal government. So let's not pretend that striking down the mandate would be a victory of principle rather than just a huge embarrassment for the White House, or that upholding it would mark a big new advance of government power. Politically, it matters. Constitutionally, it's a tremendous fuss about not very much.

Spoken like a layman, a lame layman at that.

Listen, I'm not sure if now is the time to break it to these pundits. They're just starting to sober up, to see reality in a different light, and beginning to understand the stakes here...

You see,
it IS about change, but maybe not the change the libs envision. Plenty of voters are simply fed up with "accepting" the public policies thrust upon us, and as more and more of the bills come due, I think we'll see more of a curtailing of the entitlement mentality, rather than its expansion.

In short, we don't all accept the way the Constitution has been re-written, nor do we all agree that the public policy financing decisions of the past few decades have helped the country. These out-of-wedlock births? Why would any couple wait until they can afford their babymaking (and especially, the costs beyond), when if you just get pregnant when single and not working, the woman and her boyfriend can save the insurance expenses and put it toward a big wedding in a few years, with the very photogenic toddler taking part in the big wedding. (Financed by all the money saved by having the government pay for your family creation costs...)

See -- the government will pay for the mother and child needs -- from WIC support, to medical care, to all the freebies that come because nobody wants to see a struggling child and mother. Ditto with our senior care. If you're financially savvy, you have your elder become "indigent" by transferring their asset wealth into one home, one car (can be an expensive car) and trusts for the next generation's inheritance. Then, the family assets are secure, and the government will pay for the nursing home care, private nurses to come visit, and whatever else the indigent would qualify for. My family doesn't operate this way, but perhaps yours does? It's an upper-middle-class game, that's for sure.

Paying your own way in these no-stigma days? For your own children's births, health needs, or your own elderly family's care?
Suckers.

Did you know, for example,
undocumented, unseen, unprotected immigrants are not subject to the mandate? But, of course, they still would be treated for free at the emergency rooms. So there's still that cost shifting going on...

But this whole idea of everyone paying, regardless of financial need, to carry our ill, our disabled, our elders, our "needy"? I think we're wising up to the fact that these subtle financial incentives are costing more and more to those doing the providing.

That's gonna change. It has to.
Striking down the individual mandate which mandates the direct transfer of earned wealth from one group to another, aided by government social worker bureaucrats and well-meaning libs, is ending.

For real.
Look to the affirmative action case coming up to the Court. Want to speculate that the reason so many white men are rejecting college is because those raised in integrated schools see education as being "fixed"? Meaning, no matter how hard you work or how well you do on those tests, if your buddy sitting at the desk next to you wants to slough off, well, if he's being judged by the color of his skin, not the content of his character, he's in even with lesser stats? Who wants to play in a fixed game?

The liberal elite white writer here says, "Constitutionally, it's a tremendous fuss about not very much."

We who are paying the bills, the taxes, putting in to a social "security" retirement system that those under 55 have been warned will not provide for them in the end, don't accept the changes this writer assumes are permanent. He thinks the money is never ending. Like the Keynesians, they simply don't see an end in prosperity in sight.

Some of us, more realistic perhaps, do.
We vote, we save, we work, we're not accepting of the changes that have crippled our educational system, or healthcare delivery system, our worker protections. For heavens sake, we need to address the needs of the people already here -- citizens or not -- before we go making any more entitlement promises or presumptions.

I see that. The lib pundits don't.
They're in for a big surprise in the coming years, I suspect, when personal responsibility -- paring down your needs to meet what you can afford -- makes a comeback.

The Court has the Constitution, and despite the artificial diversity, the intelligence to make the hard decisions. The political/lobbyist/media class has failed us. Look around and see.

We the People? I wouldn't assume we're all ready to roll over, play dead, and give in to the demands of the growing "victim" class. Reality matters, voters still have a voice, and despite the best efforts to demonize the pragmatic, common sense is indeed making a comeback.

One of these days, we're going to tackle the root causes of a sick system, and not simply accept the band-aid quick-fix that some think will work for the time being.

Change is gonna come, all right.
Ready or not...
--------------------------------

From the comments:

Gerard Harbison
Paraphrase: we've already stretched the Constitution beyond all recognition. It's illogical not to let us stretch it a little more.

I do happen to think a federal constitution with a narrowly interpreted commerce clause is tenable in 2012. If the USSC decides along the way to overturn Wickard vs. Filburn, I'm OK with that. Unfortunately, they probably won't feel the need.