The UW healthcare debate: wrestling with a pig
News, Political, School, Law ·Thursday May 27, 2010 @ 19:40 EDT (link)
I went to the universal health care constitutionality debate at the UW law school today and, while the debate itself was rather a waste of time, I was reminded of an important adage: Don't get into a fight with a pig, because he'll win, you'll both get dirty, and the pig likes it. The guy from the CATO institute did that, and he regretted it.
Here, the "mud" is the constitution-as-currently-interpreted (CACI) and the pig is the UW law school expert steeped in all those rationalizing court decisions about whether something is a tax, or can be taxed, or can be regulated using the taxing clause, or if the interstate commerce clause can be used to regulate growing wheat (or marijuana) for one's own use, or whether the necessary and proper clause conveys absolute power to congress (of course it does! need you ask?) and so on. You're on their playing field, the playing field of the CACI, and the CATO guy was doomed before he started. He should have tried to arrange for a morality-based debate; but then nobody at UW would have stepped forward to debate him.
The UW law professor did make a valid point that would exist even in an originalist debate, though: the current lawsuits are generally problematical in that the court only hears "cases or controversies" of "injury in fact"; and since many of the provisions that require the states to pay don't go into effect until 2016, nor the individual mandate until 2014; and the states do not have standing to bring a case for their residents anyway. So it seems many of these suits will be validly dismissed for lack of standing.
It's was very clear that the originalist constitution and the CACI are two extremely different things. In one, for example, the federal government only has the powers explicitly delegated to it; in the other, all sorts of things creep out of the penumbras and emanations, giving congress powers never imagined by the framers. I think the CATO guy gave it a good shot and would have scored a lot of points if he was debating the morality of the healthcare bill, or how pro-liberty it is or is not, but on holding it up to the current interpretation of the constitution and active precedents, the UW law professor picked him up by the scruff of the neck and swept the floor with him. He even took him to task with the economics of it all, emphasizing a potential free rider concern, that, of course, is really made worse by the exclusions of pre-existing conditions from insurer consideration (if your house is burning down, you shouldn't be able to buy insurance).
We (libertarians) are too used to thinking of the original constitution, not the 300 years of corruption it's undergone to become the CACI. Thus, we still think of it as a good thing, and we still think that blatantly, obviously (originally) unconstitutional laws can be challenged on constitutional grounds. And they can, but big government will win just about every time because it's their pigpen—and SCOTUS is part of the government too, and they don't get appointed for being in favor of shrinking it.
So don't take up offers to play in their pigpen; if you must wrestle, wrestle in the light of day and over morality and economics, not in a pigpen designed, built, enclosed, and fully controlled by the other guy. Don't get sucked in to hopeless causes; don't walk onto a stage where their rules prevail and morality is utterly irrelevant. Why waste your time?
Books finished: Why Popcorn Costs So Much At the Movies.
