by hilzoy
From the Washington Post:
“President Bush yesterday rejected entreaties by his Republican allies that he compromise with Democrats on legislation to renew a popular program that provides health coverage to poor children, saying that expanding the program would enlarge the role of the federal government at the expense of private insurance.
The president said he objects on philosophical grounds to a bipartisan Senate proposal to boost the State Children’s Health Insurance Program by $35 billion over five years. Bush has proposed $5 billion in increased funding and has threatened to veto the Senate compromise and a more costly expansion being contemplated in the House.
“I support the initial intent of the program,” Bush said in an interview with The Washington Post after a factory tour and a discussion on health care with small-business owners in Landover. “My concern is that when you expand eligibility . . . you’re really beginning to open up an avenue for people to switch from private insurance to the government.”
The 10-year-old program, which is set to expire on Sept. 30, costs the federal government $5 billion a year and helps provide health coverage to 6.6 million low-income children whose families do not qualify for Medicaid but cannot afford private insurance on their own.
About 3.3 million additional children would be covered under the proposal developed by Senate Finance Committee Chairman Max Baucus (D-Mont.) and Republican Sens. Charles E. Grassley (Iowa) and Orrin G. Hatch (Utah), among others. It would provide the program $60 billion over five years, compared with $30 billion under Bush’s proposal. And it would rely on a 61-cent increase in the federal excise tax on cigarettes, to $1 a pack, which Bush opposes.
Grassley and Hatch, in a joint statement this week, implored the president to rescind his veto threat. They warned that Democrats might seek an expansion of $50 billion or more if there is no compromise.”
I find this completely bizarre. Providing health insurance to children, who cannot possibly be thought not to deserve it because of some previous bad choice, and who can suffer from the results of inadequate or nonexistent medical care for the rest of their lives, would seem to be one of those issues that we could all agree on. The administration is picking a fight on this unpromising turf, and it is completely distorting the facts in order to do so. Here’s a good factcheck of administration claims by the CBPP. A few important points below the fold.
First, the administration claims that the bill reauthorizing SCHIP is an attempt to substitute government-run health care for private insurance. For instance:
“White House objections to the Democratic plan are “philosophical and ideological,” said Allan B. Hubbard, assistant to the president for economic policy. In an interview, he said the Democrats’ proposal would move the nation toward “a single-payer health care system with rationing and price controls.””
This is just nutty. As the CBPP points out:
“These charges are groundless. SCHIP is a ten-year-old program up for reauthorization that does not operate through a single-payer system or anything remotely like it. Both SCHIP and the Medicaid program use private doctors and private health care plans. Moreover, it is the states, not Washington, that set the income limits, contract with providers and set provider reimbursement rates, and determine most of the particulars of the health care benefit packages in these programs.
“Government doctors” and “government health plans” do not deliver the services in SCHIP or Medicaid. It is private doctors and private health plans that do, as under private insurance.
Indeed, most Medicaid and SCHIP beneficiaries receive coverage through private plans that contract with their states. Almost two-thirds of all Medicaid beneficiaries are enrolled in a Medicaid managed care plan, the vast bulk of which are private plans. This is particularly the case among children enrolled in Medicaid; 73 percent of the children enrolled in Medicaid received most or all of their health care services through a managed care plan.[3] These percentages are even higher in state SCHIP programs that operate separately from Medicaid; all but two states with such programs contract with a managed care company or other private entity to provide many or all SCHIP services.[4]
In most states, children covered through Medicaid or SCHIP either have the choice of a privately operated managed care plan or are required to enroll in such a plan.”
Second, in the Post article I cited at the top of this post, Bush says this: “My concern is that when you expand eligibility . . . you’re really beginning to open up an avenue for people to switch from private insurance to the government.” That’s very misleading. For one thing, any proposal to expand coverage to the uninsured makes it possible for people to switch from their existing insurance to the new program, whatever it is. That’s just a feature of trying to cover more people, and the only way to avoid it would be to have a program administered by God, who, in His omniscience, would be able to tell who already had insurance.
The question about any proposal to increase coverage is not: will it end up covering some people who already have insurance? The answer to that question is bound to be ‘yes.’ Instead, it’s: what proportion of the people who enroll in the new program will be presently uninsured, and how many will be switching from other insurers? Here’s the CBPP:
“SCHIP scores well, rather than poorly, on this front. Jonathan Gruber of M.I.T., the eminent health economist who conducted the study on SCHIP crowd-out that Secretary Leavitt singled out in a Washington Times op-ed on July 9,[9] has noted that despite the significant “crowd-out” effects he has found to be associated with SCHIP, expanding programs like SCHIP is the most efficient way to cover the uninsured.[10] Gruber has written that “no public policy can perfectly target the uninsured, and public insurance expansions like SCHIP remain the most cost-effective means of expanding health insurance coverage. I have undertaken a number of analyses to compare the public sector costs of public sector expansions such as SCHIP to alternatives such as tax credits. I find that the public sector provides much more insurance coverage at a much lower cost under SCHIP than these alternatives. Tax subsidies mostly operate to ‘buy out the base’ of insured without providing much new coverage.”[11]
Gruber found, for example, that the substitution effects under proposals that the Administration made last year to provide tax deductions and credits for the purchase of insurance in the individual market would dwarf the effects under an SCHIP expansion. Gruber found that 77 percent of the benefits under the tax deduction and tax credit proposals the Administration made last year would go to people who already were insured. He also found that a primary effect of these tax proposals would be to lead people who already have insurance to switch to from one form of coverage to another, rather than to reduce the number of uninsured. Indeed, he estimated that because the Administration’s proposals would induce a significant number of employers to drop coverage, the proposals would produce no reduction in the overall number of uninsured people even though they would cost nearly $12 billion a year.[12]“
We are talking about a program that would, according to CBO estimates, allow 4.1 million kids who do not have access to health insurance to get it. If the administration wants to fight this one, then let’s rumble.
If you start from a position of extreme unreasonableness, you can appear to have compromised very graciously while still maintaining a position of moderate unreasonableness. It’s a great trick to watch the first couple of times.
If I got it right, Gruber was predicting that the tax credit proposal would actually lead to 600,000 *more* people being uninsured. And he’s assuming that only 5.5% of employers would drop coverage (which he calls “a fairly modest response to a virtual removal of the tax advantage”). That didn’t really have to do with the switching thing, but I thought it was interesting.
http://www.cbpp.org/2-15-06health.htm
The concept of leaving a good family health plan, and paying the single rate, simply to make a child eligible for the program seems absurd. Leaving a bad private program to take advantage of superior coverage under the program does make sense. Keep in mind that since the last version of the bill, far more Americans now live in poverty.
I am not sure any other position shows Bush’s craven debt to corporate interests (here insurance) than this one.
Mudge – Supposedly, people might switch from family to single because they can’t afford the co-pays for the children.
I find this completely bizarre. Providing health insurance to children, who cannot possibly be thought not to deserve it because of some previous bad choice, and who can suffer from the results of inadequate or nonexistent medical care for the rest of their lives, would seem to be one of those issues that we could all agree on.
But Bush is pro-life, or at least wants to have pro-lifers vote for him. So post-birth fetuses don’t matter, neither their health nor their lives: only pre-born children. /irony
Unironically, this is a perfectly predictable pro-life/right-wing position: pro-life/right-wing politicians are as consistent in defunding programs to support low-income women with children as they are in preventing low-income women from access to contraception or abortion.
“Providing health insurance to children … would seem to be one of those issues that we could all agree on.”
To the extent that we wouldn’t disagree about how to accomplish it? To the extent that we’d automatically ignore that disagreement, and sign on to the way one faction wants it accomplished, without dissent? I think not.
You’re exibiting a common technique among liberals, the conflation of ends and means. “Program X is intended to accomplish end Y. So and so opposes program X. Therefore so and so opposes end Y! may make effective rhetoric under some circumstances, but it’s lousy logic.
As for “Do it for the children!” trumphing all other considerations, my take on it is that we are, ideally, children for only a small fraction of our lives. There’s got to be a limit to how much we’re willing to disadvantage people though 80% of their lives to benefit them during 20%.
None of this is to address the merits of the proposal, which I wouldn’t want to do anyway before my breakfast hits my bloodstream. It’s only to say that “Do it for the children!” is getting old, fast. I don’t think many people fall for it anymore.
Thank you, Brett. No one but a pro-lifer could have underlined my point so clearly.
You’re exibiting a common technique among liberals, the conflation of ends and means. “Program X is intended to accomplish end Y. So and so opposes program X. Therefore so and so opposes end Y! may make effective rhetoric under some circumstances, but it’s lousy logic.
interesting, Brett. could you tell all us America-hating, pro-abortion, al-Queda-coddling, enemy-comforting, objectively-pro-Saddam commies more about this fancy theory of yours? is this disposition limited to liberals, or is it found in other of the lesser political mindsets, too? i’d love to know more!
There’s got to be a limit to how much we’re willing to disadvantage people though 80% of their lives to benefit them during 20%.
I kinda think that because the 20% you are talking about always occurs before the other 80%, you have to figure that into this somewhere. Of course, when that 50+ year old woman gave birth thru artificial insemination, the question I liked was whether she would vote for higher taxes to support education when she was 64…
Cleek, on reflection, I’m actually more interested in finding out how Brett figures that receiving health care as a child disadvantages you for the rest of your life.
Jes, we’re not talking about whether children will receive health care, but instead how children will receive health insurance. See my remark above about conflating means and ends as a rhetorical tactic. Resorting to that tactic immediately after it was pointed out demonstrates that you’re not using it consciously, I suppose, so maybe some self examination on your part is due.
And, yeah, the Bush administration resorts to that tactic, too. It’s grating when he does it, as well.
A particular way of getting children health care could certainly have a negative impact later in their lives compared to a different way of getting them that health care. After all, it’s all going to be paid for by adults, and may well involve other impacts on how health care is delivered to adults.
Dang. And here I was getting all excited when Bush said it would move us toward a single-payer system.
Except Brett, we’re starting to get to the point where we need to discuss other policy options – something for which we need breakfast to hit your bloodstream. 🙂
I’m going to make simple and declarative statements, and you can let me know which ones you disagree with.
1. It is important to the nation as a whole for all children to have access to good medical care, for a variety of reasons, including that healthy children lead to healthy productive adults.
2. Not all children have access to good medical care.
3. It is not in the insurance company’s best profitable economic interests to insure all the children.
4. Therefore, there must be another insurer organization which is not dependent on profit to ensure all children.
5. This best alternate insurer is the Government, at the federal level because of the aggrandizement of risk and costs across the entirety of the United States.
Please let me know which of those you disagree with.
Brett: Jes, we’re not talking about whether children will receive health care
Actually, we are talking about whether children will receive health care. Facts on Uninsured Children
You might want to acquaint yourself further with the facts on provision of health care in your own country, and then return to the fray. (Decided FenceSitter’s list looks good to me too.)
I agree with everything in those statements except for the word ‘aggrandizement’. (Maybe insufficient breakfast in the bloodstream had something to do with it… 😉
Aggregation?
Man, what is up with you people not eating breakfast? Most important meal of the day, people! Half a grapefruit!
Yeah, but if you spend resources on breakfast, that leaves you short for the other 80% of the day.
Since I support single-payer, universal health care, I support most steps that get us in that direction. Expanding SCHIP is one such improvement.
I want to criticize a few bits of dishonesty in the President’s justification for opposing this program. Aside from his misleading conflation of health care funding and health care provision (no one is offering to build federal clinics and hospitals for children), he ignores that many of the people with marginal insurance programs who would be moving to a SCHIP will likely do it anyway as private insurance coverage degrades in response to health care and insurance inflation. It is also dishonest to ignore all rationing and price controls that exist in the private system, while decrying it in single-payer systems. The whole point of SCHIP is that these children have already been priced out of the market. They are rationed out, don’t complain about rationing of steak to the man without bread.
Hush Nell, I was working quickly in between sections on a deliverable. 🙂
And I had breakfast. 2 Hot pockets. And I think I’m on my 3rd Coke of the day.
It’s been a long week.
There’s this idea we run across a lot, that if one simply *hopes* that children magically get insured, and *hopes* that civilians aren’t slaughtered as a result of our invading the country, and *hopes* that the global warming problem goes away, etc. etc. etc. then one is therefore a Good Person & is excused from trying to make those things happen, & can actively oppose all attempts to make them happen and not provide any plausible substitute.
Or someone who *hopes* that we aren’t convicting or executing innocent people, but opposes increased spending on public defenders, DNA testing, or granting habeas jurisdiction over newly discovered evidence of innocence.
Steamed veggies and rice take a while to hit your bloodstream.
1. Yup.
2. Yup.
3. Contingent, and we’re starting to move from general ends to specific means again.
4. The leap has been made, assuming that it has to be insurance.
5. And now the ‘liberal’ insistance on solving all problems through government kicks in.
Here we have a goal, healthy children, which has virtually universal assent.
The costs are, as I understand it, not outrageous: Children are not, typically, huge consumers of health care. Quite the contrary.
Most children are not endangered, their parents quite properly taking up this inherent aspect of child raising. This means the problem to be solved is even smaller: Getting health care to children of poor parents.
Why don’t you consider private charity as a solution? The advantages are manifest:
1. You neatly avoid the collective action problem. In particular, you don’t need George Bush’s signature.
2. You avoid raising any concerns among people about impacts on children or adults whose health care provisions are already ok.
3. Private sector organizations are more nimble, and better situated to make detailed distinctions between cases.
Ok, what are the disadvantages?
1. You can’t jail people who don’t ante up. Sorry, I see this as a plus.
2. Democratic officeholders don’t get credit. But… You couldcreate the charity as a branch of the Democratic party, wouldn’t be unprecidented, though it’s mostly found in other countries, for political parties to run charities.
Objections?
Remember the woman who died on the emergency room floor in Chicago while waiting for health care? That’s the “health care system” currently advocated by President Bush. See, if you’re poor – you’re not entitled to government funds. Only Haliburton, Blackwater, and their ilk are so entitled.
Besides, all Bush’s policies are designed to create a permanent, elite aristocracy with colleges only they can afford to attend, and their own special “justice” system and rights. Denying affordable health insurance to children keeps people from asking why others in the population can’t get affordable health insurance either.
And don’t talk about Bush’s health insurance plan – he’s just trying to eliminate insurance coverage for folks in the middle class with pre-existing conditions working at big companies. No employer-based health care = no group coverage = no coverage for pre-existing conditions. It the “screw you, I haven’t gotten sick yet” theory of moving from the insurance model to the health savings account model. If you get sick and can’t afford treatment – well, die in intense agony or move to Oregon.
Brett, as soon as I see the Pentagon funded entirely by charity, I’ll support the same thing for healthcare. How much money got collected for the 9/11 widow & orphan fund? Because you’re talking about more cash than that, every year from now ’til forever.
Yes, I object to charities. Charity is condescending. There’s no excuse for any developed nation to rely on charity for basic human needs such as food, clothing, shelter and health care. That is the government’s job. Charity tells us that the government is either failing of just being nasty.
Charity also fails. Charities often add their own requirements for a beneficiary to be served. They are parochial. They are often self-centered and many of those who donate to charity are self-aggrandizing like the wealthy man in the parable of the Widow’s Mite. Taxes and government spending are fairer, both in collections and in distribution, not perfect, just better.
“Yes, I object to charities. Charity is condescending.”
You see, that’s one of the problems with government “entitlements”; They’re not condescending. The sting of depending on charity is, after all, one of the things which motivates people to support themselves.
“Charity also fails.”
Um, yeah, what doesn’t? But, regarding my mention of the coordination problem, charity doesn’t fail as much as government programs which never get enacted because we don’t agree on them. Because charity doesn’t REQUIRE people to agree. You just go ahead and DO IT.
What’s more important to you, good health for children, or that it be done though government? It’s looking to me like the latter.
“Taxes and government spending are fairer,”
There’s the problem, we disagree, fundamentally, about what’s “fair”. You think that people having a choice is “unfair”. I think sticking a gun in people’s faces and telling them to contribute to your favorite charity or be locked up in a small room is unfair.
You’re not suggesting their not be a charity, freelunch. You just want your charity to be authorized to shoot people who don’t contribute.
Brett: “”Providing health insurance to children … would seem to be one of those issues that we could all agree on.”
To the extent that we wouldn’t disagree about how to accomplish it?”
— If you read the para. of which that sentence was a part, it doesn’t lead up to: “and yet Bush doesn’t agree, because I dismiss his plan as even a means of providing health care.” It leads up to: “The administration is picking a fight on this unpromising turf, and it is completely distorting the facts in order to do so.” It was a point about me finding the politics bewildering.
Also: “we’re not talking about whether children will receive health care, but instead how children will receive health insurance.” — In any universe in which we are talking about Bush’s actual proposal as compared to the Senate’s actual proposal, we are absolutely talking about whether children will receive health care. With the Senate’s proposal, 4.1 million kids who do not have access to health insurance get it. With the President’s, it’s harder to estimate, but it would certainly be less. (There would be a much bigger SCHIP shortfall passed on to the states, for instance; one thing that makes it hard to estimate is that a lot turns on how the states respond, but it’s hard to imagine that all of the states would make up the whole shortfall, especially what with their having to balance the budget each year.)
About charity: private charities are good for somethings, less so for others. One of the things they’re less good at is making sure that people don’t fall through the cracks.
The government is doing a quite decent job of insuring poor kids as it is. To repeat one of CBPP’s points: this is not a new program. It has been around for a decade. It has worked quite well, without bringing us one iota closer to a single payer system, or anything.
It’s fair enough to impute to people the intent of the known effects of their actions, I think. So Jes is quite right.
I think sticking a gun in people’s faces and telling them to contribute to your favorite charity or be locked up in a small room is unfair.
Does forcing people to pay for the war in Iraq bug you, too? Because I’d like to have a choice about that.
One fundamental problem with charity is that, even assuming it manages to address the problem at hand, the burden ends up falling disproportionately on the best people among us. Those who are stingy or greedy give nothing and leave more of the burden for others to pick up. It feels like rewarding bad behavior to me.
Another major problem is that individual giving to charity is relatively inelastic. Thus, if the Democratic Party establishes a charity, it ends up sucking money away from other charities which are also deserving.
What’s more important to you, good health for children, or that it be done though government? It’s looking to me like the latter.
This is another argument that I’d love to apply to the Iraq war. I wonder how it would sit for Democrats to defund the war, and say “if you guys like the war so much, set up a private charity to pay for it!”
Brett: Why don’t you consider private charity as a solution?
Because it isn’t.
As a friend of mine once memorably said, in response to a similar suggestion: If we had a perfect system of private charities, we wouldn’t need a state: if we had a perfect state, we wouldn’t need private charities.
Relying on rich people to be voluntarily generous enough to fund health care for all poor people who need it, has been tried, over and over and over again, for centuries, and it doesn’t work.
So why do right-wingers keep bringing up this failed idea?
Why are republicans so eager to form a very distinct class system in this country? Too many Victorian novels.
Shorter Brett: Poor people in the US aren’t sufficiently ashamed of being poor.
Charities, ESPECIALLY in these areas, depend on government funding to do their jobs.
I don’t know a social service non-profit that DOESN’T have government funding as a key component of their revenue sources.
Is the punishment for tax evasion really death by firing squad? Is this some new Democratic legislation that somehow slipped by me because I don’t listen to Neil Boortz?
Also, last I checked, we already get to choose between paying at least some of our taxes and giving to private charities. Ever heard of Section 501(c)(3)?
By the way, if you go ahead and ASK some of these non-profits who actually work in these areas, I think you’d find that they’d be VERY happy to see this government program get enacted.
(Or, more precisely, 26 U.S.C. § 170. Which pertains to contributions to organizations classified under 501(c)(3). But then, almost nobody’s heard of 26 U.S.C. § 170.)
I guess it is unsurprising that no one has mentioned the mechanism for funding this issue, yet another cigarette tax, a favorite in many states. It may be a good idea but I would prefer that things the society at large thinks it appropriate to fund be paid for by the whole society. The thinking here, by congress, seems to be a combination that says “we want this funded, but we’ll have someone else actually do it,” so, like, most of us will get it for free.
No, Brett, I don’t want threats. I do want pro-lifers to put their money where their mouth is. I consider every single pro-lifer who refuses to support a decent social safety net in this country to be an indefensible hypocrite.
Contrary to your implicit desire, children shouldn’t have to support themselves. They are not responsible for the bad decisions or bad luck of their parents. Children are not responsible for the good decisions or good luck of their parents, either, which is why I support estate taxes. Give the children of the rich a chance to accomplish more than Paris and Nicole have done. Children should neither be expected to feel shame for receiving social services nor pride because they are richer than others.
Grackle: in an ideal world, you’re right, but you go to war with the Congress you have, not one that might hypothetically be free someday of political opportunism or big business. Personally, I’ve decided not to let the perfect be the enemy of the good on this one; but that’s a different call than “we shouldn’t support this bill because it doesn’t help insurance companies enough”.
Let’s not demonize Brett. He disagrees in principle on what the role of government is, or, perhaps, how effective government would be. I think it’s an honest disagreement, and I don’t think he wants poor children to go without health care. Besides, this thread would be far less interesting without his input.
With that said, the situation we find ourselves in is one in which the government does collect taxes and uses those taxes to pay for myriad things. Not everyone will agree that all of those things are appropriate. I would guess that there are few, if any, particular government activities that everyone would agree that our government should be doing. Any given person, based on his or her disagreement with the government’s role in a particular activity, can claim to be forced at gunpoint with threat of imprisonment to fund something he or she disagrees with, even if only from the standpoint of the proper role of government, if not fundamentally with the activity itself. What’s the alternative to not everyone agreeing about everything? Anarchy?
So we’re going to quibble over this or that program and whether people should have to “involuntarily” contribute to it with their tax dollars. But some things would certainly be more controversial than others. And given the situation, which things are you really going fight over? Which things, as a nation, as a people, do we value highly enough that we won’t fight too much over, that we would gladly allow our government to allocate its resources for?
I guess if you really think private charities are that much more effective than government programs in solving a particular problem, and that the tax dollars that would be spent trying to solve that problem will come at the expense of contributions to private charities better able to solve it, you would be inclined to resist that government action. There may be other things far worse that you could be fighting, but maybe not.
In the case at hand, I would ask Brett what he would think about the funding of government-provided health insurance for uninsured children if he were somehow convinced that private charities were not, in fact, more able to assure health care for these children. Would this still be objectionable strictly from a small-government philosophical standpoint, or would the practical concerns outweigh others?
Why don’t you consider private charity as a solution?
I consider it at best a partial solution. That’s because it tends to be easier to get donations for photogenic causes. The development director of a homeless shelter once told me that she could get money for homeless kids’ school supplies easily enough, but it was extremely difficult to get private donors to pay for services to adult men who were homeless due to mental health problems.
I don’t trust private charity to be even close to evenhanded in serving its potential beneficiaries. Government is highly imperfect, but the concept of equal treatment is at least enshrined in law and regulation.
I greatly appreciate Brett Bellmore coming here and arguing his position civilly despite his distinctly minority views on this blog.
I have a more basic objection to Brett’s claim. The gap between needs and funding already exists. Plenty of charities already exist. Charity HAS ALREADY FAILED.
We Democrats are turning to the government because the evidence that charitable giving is inadequate to form a safety net for poor children is available just about every single day of the year in emergency rooms across the country.
Hospitals have tried charity as an alternative to federal programs. Doesn’t work.
In the face of this failure, the burden has shifted back to Brett to devise a reliable charity system, or admit that his political preferences for a smaller federal government outweigh his beliefs as to the benefit that the program will provide.
the burden has shifted back to Brett to devise a reliable charity system
Hm… Reliable charity system.
Hey, why not have everyone who earns more than, say, $8000 dollars a year, has to donate a certain percentage of their income to help out those who need it? And a person who earns more, has to donate a bigger percentage? In fact, the money from these donations could be used to pay for things everyone needs, all over the country, like roads, and schools, as well as health care? There could be a government department which would help you figure out how much you have to donate each year from your income, and follow up on the selfish who want to freeload on this system by not donating their share.
Wonder what we’d call this system, Brett?
“his political preferences for a smaller federal government”
Whew, I’d said the liberal insistance on doing things through government, seems I should have said “through the highest possible level of government”; What’s the matter, Francis, why aren’t you demanding that it be the UN?
My political preference, first of all, is that we have the rule of law. And we happen to have a Constitution, the highest law of the land, which gives the federal government a relatively limited set of tasks and powers, and expects everything else that’s going to be done by government to be done at the state or local level.
Doing it at the federal level is a constitutional violation, at the state level it’s just a policy debate. I might actually be persuaded that it should be done by state government, if you can demonstrate that charity has actually failed, as opposed to not being seriously tried, and that the costs of doing it through government are not worse than the costs of doing it imperfectly in the private sector.
You’ll never persuade me that it should be done at the federal level, without a constitutional amendment.
Brett,
“Doing it at the federal level is a constitutional violation … You’ll never persuade me that it should be done at the federal level, without a constitutional amendment.”
The Supreme Court humbly dissents from your interpretation of the Constitution.
I think the non-profits actually working to do this would STRENUOUSLY object to saying “not being seriously tried”.
What would you characterize as “not being seriously tried”? What actions are not being taken that you think should be taken in the area of “charities”? I think that would clarify things immensely.
There could be a government department which would help you figure out how much you have to donate each year from your income
ah.. but you wrote “have to donate”. that’s the sticky part. some people think they shouldn’t have to do anything. they apparently think every wo/man is an island.
The Supreme doesn’t do ANYTHING humbly, it’s a miracle their collective ego doesn’t collapse the entire Capitol into a singularity, it’s so massive.
I’m not talking about what the Supreme court feels like letting the federal government do, I’m talking about what the Constitution says it can do. They stopped being even remotely the same thing back in the ’30s, when FDR bullied the Court into ceasing enforcement of any part of the Constitution that got in his way.
Brett: I’m not talking about what the Supreme court feels like letting the federal government do, I’m talking about what the Constitution says it can do.
I’m not biting.
Brett, how about gwang’s question: What would you characterize as “not being seriously tried”? What actions are not being taken that you think should be taken in the area of “charities”? I think that would clarify things immensely.
“I’m not talking about what the Supreme court feels like letting the federal government do”
I can’t see how that’s consistent with your invocation of the rule of law above.
Now that FDR’s djini’s out of the bottle, is federally funded health insurance for poor kids high on the list of (supposedly) unconstitutional practices?
“Yes, I object to charities. Charity is condescending. There’s no excuse for any developed nation to rely on charity for basic human needs such as food, clothing, shelter and health care. That is the government’s job.”
What a deep misunderstanding of charity. If we believe that it is a duty to provide basic human needs, that IS charity whether or not the government does it. It is every bit as ‘condescending’ to provide it through the government.
Brett,
“They stopped being even remotely the same thing back in the ’30s, when FDR bullied the Court into ceasing enforcement of any part of the Constitution that got in his way.”
Since the current Supreme Court has not had a member appointed by FDR since Douglas retired in 1976, and 7 of the 9 current members were appointed by Republican Presidents, while your interpetation of the Federal government’s tax and spending powers has no support among the current Supreme Court, either (a) the interpretation of the Constitution which followed the “Socialist Revolution of 1937” (to use Janice Rogers Brown’s lovely turn of phrase) has support across the political spectrum, or (b) FDR has really a scary hold on the Supreme Court decades after his death. Which do you think is more likely?
“Now that FDR’s djini’s out of the bottle, is federally funded health insurance for poor kids high on the list of (supposedly) unconstitutional practices?”
I would put the current DOJ position on marijuana grown for personal use or their position on assisted suicide or justifying ‘no-knock’ raids in the dead of night because someone might flush a baggie down the toilet as higher priorities for practices that are pretty clearly unconstitutional.
(Note, I strongly disagree with the Oregon assisted suicide law, so it isn’t just opportunistic federalism).
“What actions are not being taken that you think should be taken in the area of “charities”? “
Any time I pick up a glossy magazine, I see advertisements for charities abroad, asking me to donate to help children in a hundred countries that aren’t the US. Why, pray tell, do I not see such advertisments for similar efforts here?
Could it be, that the people you’d expect to run such efforts devote their time to getting government programs, to the exclusion of private sector charity?
****
Here’s a modest proposal: If spending on children is so important, surely the government should not tax money spent to such ends. Alas, the poor don’t have the income for such a targeted tax relief to help them.
Why not let anybody who pays for a child’s healthcare/education/whathaveyou take a tax deduction, instead of just the parents?
“either (a) the interpretation of the Constitution which followed the “Socialist Revolution of 1937″ (to use Janice Rogers Brown’s lovely turn of phrase) has support across the political spectrum, or (b) FDR has really a scary hold on the Supreme Court decades after his death. Which do you think is more likely?”
Institutions rarely give up power once given to them.
Because a) local charities target local dollars—that doesn’t work quite as well for international dollars, and b) they are the LEAST effective ways to raise money.
Generally, you raise money through major gifts, annual fund appeals and special events (in decreasing effectiveness). Note that two of these are targetting the upper classes anyway.
But, to continue, what are other ideas?
Finite Italico!!
Sebastian,
“Institutions rarely give up power once given to them.”
Even acknowledging this for purposes of this argument, what power did this allegedly improper interpretation give the Supreme Court (who is the institution who is exercising the decision not to give up Congress’s allegedly improper taxing and spending powers)?
Since the current Supreme Court has not had a member appointed by FDR since Douglas retired in 1976, and 7 of the 9 current members were appointed by Republican Presidents, while your interpetation of the Federal government’s tax and spending powers has no support among the current Supreme Court, either (a) the interpretation of the Constitution which followed the “Socialist Revolution of 1937” (to use Janice Rogers Brown’s lovely turn of phrase) has support across the political spectrum, or (b) FDR has really a scary hold on the Supreme Court decades after his death. Which do you think is more likely?
I have no intention in getting into the meat of the larger issue, but this argument is fallacious. There are numerous other conceivable answers to the question as posed, such as the one Sebastian mentioned. Arguing otherwise creates a false dichotomy.
One can assume that Presidents and members of the Senate are really, really bad judges of Judges, or you could suppose that Presidents nominate, and the Senate confirms, yes men.
Considering how unlikely it is that Presidents and Senators will grab power, only to place on the bench judges who’d take it away from them, I suppose the latter.
In any event, the circle can be simply squared, and all the festering questions about the legitimacy of post New Deal expansions of federal power put to rest, simply by drafting an amendment or two, and getting the states to ratify them. Something along the lines of the Tenth amendment, I’d suppose, only inverted.
Go for it: If it’s ratified, I’d shut up about the issue. I rather doubt it would be ratified, but I’ve been proven wrong before.
(Note, I strongly disagree with the Oregon assisted suicide law, so it isn’t just opportunistic federalism).
Okay, but what are you doing with all those florescent lamps in your basement?
If private charity were capable of providing adequate health care for all the uninsured children, then it would be doing it already–it’s not as though chrity is against the law.. There was some intial dispute about this in the founding fathers’ generation, but it was pretty much resolved by the time Jefferson and Madison decided that federal money could legitimately be used to purchase Louisiana.
And anyone who thinks that federally-funded health insurance is unconstitutional needs to re-read the Constitution, which grants the federal government limited regulatory powers, but broad powers to tax and spend
Y’all: Republicans have no particular animosity to the poor. Poor people just don’t bribe government officials as effectively as rich people do.
Maybe we should stop moaning about the injustices of what we’ve got (since that doesn’t seem to actually improve it) and create a coordination scheme to better bribe government officials on behalf of poor uninsured children.
And I’d bet Louisiana has its fair share of uninsured kids.
If private charity were capable of providing adequate health care for all the uninsured children, then it would be doing it already
This is not necessarily the case either (though I am skeptical to the larger question of whether or not private charity could provide health care on that scale). There are second and third-order effects to government interventions like that in health care. Some people choose not to give their money to that type of charity because they don’t think they need to now that the government is involved. Others choose not to give to charity at all for similar reasons. So the fact that private charity does not currently cover the gaps does not prove that it could not do so. It is a good piece of evidence arguing that it probably wouldn’t, but it is not as conclusive as you are suggesting.
Has anyone calculated the ROI on Louisiana?
Any time I pick up a glossy magazine, I see advertisements for charities abroad, asking me to donate to help children in a hundred countries that aren’t the US. Why, pray tell, do I not see such advertisments for similar efforts here?
I’d suggest as one possibility that you are blind, deaf and dumb. I have given to some children’s charities in the past and as a result get pitches for, quite literally, a dozen of them a week.
In regards to Congress’ taxing/spending power, I remember making some objections about it some time ago — sarcastically asking whether Congress could decide to buy everyone a big screen TV — and hilzoy and some of the Con Law experts here schooled me on just what limitations Congress does and does not labor under, Constitutionally.
And if you really think that government “entitlements” aren’t condescending, you clearly have never applied for nor known anyone who has ever applied for government assistance.
Brett: Any time I pick up a glossy magazine, I see advertisements for charities abroad, asking me to donate to help children in a hundred countries that aren’t the US. Why, pray tell, do I not see such advertisments for similar efforts here?
That’s the best you can do? American charities aren’t paying for enough glossy advertising in the magazines you read, so obviously they aren’t trying hard enough to get rich people to donate?
“and as a result get pitches for, quite literally, a dozen of them a week.”
Yeah, there’s a definite commons problem there, it definitely annoys me to get my name on distributed mailing lists because I gave a good cause a few dollars.
You just hate kids, rilkefan. 🙂
The funny thing is, one of our largest donations was made so that we could get tickets to the Washington, DC charity premiere for Star Wars Episode III. That one probably got us on every mailing list in the US.
“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States”
That, surely, is clear enough . . .
Which anyone who’s given to a charity would know; that’s where the charity’s dollars goes (to methods that are effective in bringing in money).
Not to say that I’m married to government methods of assistance; what works the best is what matters.
However, you have to convince me that you know what you’re talking about…people who speak from unfamiliarity with the field are not going to move me that much…
Brett,
“One can assume that Presidents and members of the Senate are really, really bad judges of Judges, or you could suppose that Presidents nominate, and the Senate confirms, yes men.
Considering how unlikely it is that Presidents and Senators will grab power, only to place on the bench judges who’d take it away from them, I suppose the latter.”
But since the persons nominating the supposed “yes men” have been more frequently Republicans than Democrats, this goes back to my comment that this allegedly improper Constitutional interpretation is supported throughout the political spectrum.
G’Kar,
If you think that was a false dichotomy, you need to turn up your sarcasm sensors.
Has anyone calculated the ROI on Louisiana?
When you make that calculation, keep in mind that “Louisiana,” for purposes of the Louisiana Purchase, went all the way to Idaho–all land west of the Mississippi and draining into that river.
Honestly, it’s bad enough when conservatives want to claim that the New Deal was unconsitutional–but here in this thread they’re rejecting the Louisiana Purchase as well . . . the constitutional law equivalent of flat-earthers . . .
“Even acknowledging this for purposes of this argument, what power did this allegedly improper interpretation give the Supreme Court (who is the institution who is exercising the decision not to give up Congress’s allegedly improper taxing and spending powers)?”
Actually the institution in question would be the Presidency since the history of the situation is intimately tied to the threat of ‘court-packing’, which for those who don’t know the history an analogous situation would involve Bush threatening to add six judges to the Supreme Court (bringing the total number of justices from 9 to 15) so that he could appoint enough justices to insure that he could get his way on abortion.
“That, surely, is clear enough”
Clear enough that it took 150 years before anybody got it into their head that a grant of unlimited power was planted in the midst of an explict list of limited powers.
“this goes back to my comment that this allegedly improper Constitutional interpretation is supported throughout the political spectrum.”
This goes back to the point that elected officals are not a representative sample of the political spectrum, consisting entirely of people with a hugely greater will to power than the average person in that spectrum.
If the constitutional interpretation in question were really supported across the entire poltical spectrum, Republican Presidents wouldn’t have to keep promising justices of the sort they virtually never nominate.
the history of the situation is intimately tied to the threat of ‘court-packing’
No, Sebastian–the “court-packing” attempt was over proceedural due process and the contracts clause. The debate over the scope of the spending power was resolved (albeit without litigation) during the lifetime of the founders, more than a century before FDR.
“The debate over the scope of the spending power was resolved (albeit without litigation) during the lifetime of the founders, more than a century before FDR.”
Not resolved enough to get to your concept. Note for example the need for an amendment in order to levy an income tax (1913 not a century before FDR).
“If the constitutional interpretation in question were really supported across the entire poltical spectrum, Republican Presidents wouldn’t have to keep promising justices of the sort they virtually never nominate.”
Really, Brett. I guess I missed it when those Republicans won over and over while promising to repeal Social Security. Be honest–for the vast, vast majority of Republican voters, disdain for the judiciary means simply a preference for certain outcomes in the culture wars, not a coherent theory that the federal government has taken on too much power since 1933. Your view–that the New Deal and all points since are unconstitutional–has virtually no support amongst either elected officials or grassroots activists of either party.
Clear enough that it took 150 years before anybody got it into their head that a grant of unlimited power was planted in the midst of an explict list of limited powers.
Brett, although it suits your ideology to claim that this was a New Deal era controversy, you’re simply, historically wrong. Hamilton and Madison disagreed over this, with Madison at first taking your position, but later, as Sec. of State during the Jefferson adminstration, changing his views, and recognizing that Hamilton had been correct. As I’ve pointed out several times already, what triggered madison’s reconsideration of his views was the Louisiana Purchase, which under your view of the spending clause, would have been unconstitutional.
If you don’t think I’ve got the history right, refute it–but don’t ignore it.
Oh, and the spending clause is not “planted in the midst of an explict list of limited powers”–it’s in the general grant of power that preceeds that list.
Sebastian,
“Actually the institution in question would be the Presidency since the history of the situation is intimately tied to the threat of ‘court-packing'”
Not really. Again, FDR is long dead, and his idea of court packing proved very unpopular (as was reflected in the election of 1938). So unless the current justices are afraid of a new court-packing plan, that doesn’t explain the current justices fidelity to New Deal norms of constitutional power.
Brett,
“If the constitutional interpretation in question were really supported across the entire poltical spectrum, Republican Presidents wouldn’t have to keep promising justices of the sort they virtually never nominate.”
Umm, no. When Presidents talk about strict constructionists on the Court, they aren’t talking about tax and spending powers. No Presidential nominee has run on a platform that Social Security or similar governmental programs are unconstitutional since at least Goldwater.
Note for example the need for an amendment in order to levy an income tax
Sebastian, the income tax is not an example of Congress execising its spending power.
Moreover, the 1913 Amendment was needed only because a right wing Supreme Court had overruled its own earlier precedent holding the income tax constitutional. The Civil War was financed by an income tax, for example.
What they taught us in law school is that Congress has the power to tax for the general welfare, but not to spend for the general welfare.
the way I learned it in law school simplified down pretty much to the following:
1. Congress can subsidize just about anything it wants (but be careful of the 1st Amendment).
2. Congress’s power to illegalize and/or regulate is limited in theory by the Commerce Clause and in reality by the Bill of Rights. (See Raich for the dying gasp of the briefly renewed interest in Commerce Clause challenges to government regulation.)
At this point, anyone who wants to limit the exercise of either Congressional power either needs to amend the Constitution or elect a series of Presidents with views drastically different than those held by the majority of voters, who will then appoint enough judges to overturn long-established precedent.
Best of luck with that.
Conservative claims that the law shouldn’t be this way are about as meaningful to me as liberal claims that low-population Mid-West states exert too much political power. Too d*mn bad. Play the game with the cards you have, not the cards you wish you had.
All that talk about the the benefits of charity came from some of the most uncharitable commenters. And therein lies the rub.
“At this point, anyone who wants to limit the exercise of either Congressional power either needs to amend the Constitution or elect a series of Presidents with views drastically different than those held by the majority of voters, who will then appoint enough judges to overturn long-established precedent.
Best of luck with that.”
I agree with every word you say there. I’m just not particularly inclined to pretend I think the status quo is honest, or could have, as a practical matter, been arrived at by legitimate means.
It was, however, arrived at, and now the procedural burden which should have been met by the people who wanted to get to this state of affairs is now on the people who want to restore the previous state of affairs. And that burden can not be met.
Let us not pretend, however, that the status quo is without ill consequences. A vast disconnect exists between legal practice and what the Constitution plainly says, and this disconnect does not go unnoticed. It poisons our politics, and burdens our legal system with an overhead of organized sophistry necessary to sustain it.
This is why I favor a constitutional convention, even though I strongly suspect that it will result in a worse constitution than we presently have. (But do not enforce.) At least it would clear up this disconnect, and allow the status quo to continue honestly. We’d have a constitution that actually meant something again.
Liza, I absolutely disagree with Brett and Sebastian, but I don’t see your basis for calling them uncharitable, and it’s heading in the direction of violating the posting rules.
Brett–so what you’re saying is that the current system is dishonest and lawbreaking, and that you would support efforts to make it honest and law-abiding, even though such efforts will a)almost certainly never happen and b)ratify policy preferences you disagree with. In the interim, though, you’ll continue to fight the dishonesty–which you acknowledge will continue anyway–even if, in doing so, you endanger the health of children.
I’m trying to avoid personal attacks, but doesn’t this seem a little perverse?
You were going pretty strong until you got to that “even if, in doing so, you endanger the health of children.”; Since no constitutional violation of any sort is necessary to institute the sort of program we’re talking about at the state level, even assuming I had the capability of stopping you from committing this particular violation, (I don’t.) only your perverse insistance on doing it at the wrong level of government would be responsible for it not getting done.
Brett,
“I’m just not particularly inclined to pretend I think the status quo is honest, or could have, as a practical matter, been arrived at by legitimate means.”
Do tell. Please describe what illegitimate means were used. Is this akin to claims regarding the “Socialist Revolution of 1937”?
“Actually the institution in question would be the Presidency since the history of the situation is intimately tied to the threat of ‘court-packing’, which for those who don’t know the history an analogous situation would involve Bush threatening to add six judges to the Supreme Court (bringing the total number of justices from 9 to 15) so that he could appoint enough justices to insure that he could get his way on abortion.”
I would oppose that, but I don’t see how it would be unconstitutional: are you arguing otherwise?
A vast disconnect exists between legal practice and what the Constitution plainly says
Brett knows what he knows about the Constitution, even though no reputable constitutional scholar has agreed with him since about 1803, and even though the text of the constitution does not “plainly” say what he says it says . . .
Given that I’m going to be in extreme financial straits/desperation again within 2-3 months time, and my anxiety grows every day, if anyone would like to demonstrate the effectiveness of private charity, the PayPal buttons on the top of my blog stand ready to help anyone demonstrate their belief in it, and/or their personal commitment, while I wait to see if I’ll ever get that evil governmental disability help. 🙂
Fair enough, although I’d recommend this Washington Monthly article explaining why state-based health care plans have failed consistently (short answer: they can’t deficit spend in recessions). YMMV, of course, but you’re right that I was too harsh.
Of course, I’m going to guess based on your comments upthread re charity that you would oppose such an effort even at the state level. Which strikes me as hideously misguided, but is in fact a separate argument.
Brett,
Are you ever going to take rea’s point (made 4 or 5 times now) head-on? The text seems to support his point that Congress can spend money on what it wants to (for the most part, see Francis above).
You’re not suggesting their not be a charity, freelunch. You just want your charity to be authorized to shoot people who don’t contribute.
So you oppose *all* taxation? Just so we’re clear. Id hate to think you only brought up this whole shooting people thing in relation to programs that you actually objected to on other grounds.
OK, a second try:
Fair enough that I was too harsh in my condemnation–although I’d recommend this article in the Washington Monthly about why state-based health care plans aren’t as effective as federal ones (short answer: the ability to deficit-spend during recessions, when revenue shrinks and claims grow, is key). But at any rate, you’re right. So the question then becomes: would you support a program of universal tax-supported child health care if offered at the state level? I’m assuming not, based on your comments on the upper thread, and that demonstrably will hurt kids (unless you’d care to continue arguing that charity can take care of all our health insurance needs, which is an argument I think you’ll lose).
Rea: “Sebastian, the income tax is not an example of Congress execising its spending power.”
This is a quick reversal of your earlier position. You already highlighted the Constitutional provision in question:
“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States”
If the ‘general Welfare’ clause is as super-broad as you think, I don’t see why the tax power clause wouldn’t be so narrow. I think you are having a historical ‘false friends’ issue with the term ‘welfare of the United States’.
“I would oppose that, but I don’t see how it would be unconstitutional: are you arguing otherwise?”
I don’t believe I made an argument that court-packing would be ‘Unconstitutional’, though it might be in some sort of separation of powers argument. I argued that ‘court-packing’ was used to influence the decision making of the Supreme Court such that it paid more attention to the what the President wanted, rather than bothering with what the Constitution said. That is why I said that the relevant institution which gained power and then didn’t give it up was NOT the Court.
Note for example the need for an amendment in order to levy an income tax.
There was no need for a constitutional amendment to levy an income tax.
If the ‘general Welfare’ clause is as super-broad as you think, I don’t see why the tax power clause wouldn’t be so narrow.
Congress’ power to tax is limited by another clause in Article I, whereas the power to spend is not.
Dan, I think I already suggested above what I would support in the way of policy, though nobody has commented on it:
“Here’s a modest proposal: If spending on children is so important, surely the government should not tax money spent to such ends. Alas, the poor don’t have the income for such a targeted tax relief to help them.
Why not let anybody who pays for a child’s healthcare/education/whathaveyou take a tax deduction, instead of just the parents?”
If the ‘general Welfare’ clause is as super-broad as you think, I don’t see why the tax power clause wouldn’t be so narrow. I think you are having a historical ‘false friends’ issue with the term ‘welfare of the United States’.
It’s true that USSC has interpreted the Taxation Clause very narrowly, but they’ve also interpreted the spending clause broadly.
If you’re arguing that the court is inconsistent and that their interpretations are weird, I couldn’t agree more. But while that’s true as a general statement, once we’ve gone there you can’t reasonably use their limited interpretation of “The Congress shall have Power To lay and collect Taxes” as *more* controlling than their broad interpretation of “welfare of the United States” in understanding that second clause. At least, I don’t see how that could be justified.
“Feed The Children is a 501(c)(3) tax exempt organization. Donations and contributions are tax-deductible as allowed by law”
I’m not clear what you’re suggesting we do that isn’t already being done; donations to most charities of the type we’re discussing are already tax deductible. Correct me if I’m wrong; I’m decidedly non-wonky in the arcanities.
Crap. OK, the quote I was going for was “Feed The Children is a 501(c)(3) tax exempt organization. Donations and contributions are tax-deductible as allowed by law.”
This is a quick reversal of your earlier position.
No, Sebastian, not at all. The theory on which the Supreme Court held the income tax to be unconstitutional was that it was supposedly a “direct” tax which, according to Art. I, Sec. 9, has to be apportioned among the states in accordance with their population (rather than income). Nobody doubts that the power to tax, and also spend, is limited by the restrictions contained in Art. I, Sec. 9.
What Brett, and perhaps you, are arguing instead is that the spending power is implicitly limited by the other grants of power contained in Art. I, Sec. 8, so that Congress can only spend money for something it is otherwise authorized to accomplish, like establishing an army, or the post office–but not for “general welfare” purposes like health care, or social security, or disaster relief, or purchasing Louisiana. That’s sure not something the Constitution says explicitly, that’s not what people prominent among the original drafters (e.g., Hamilton) thought they meant when they adopted the Constitution, and as it turned out, when those among the drafters who originally favored a more narrow construction had to deal with actually running the country, they soon came to the conclusion that the narrow construction was dangerously impractical, and abandoned it.
It’s true that USSC has interpreted the Taxation Clause very narrowly
This isn’t true, SCOTUS has said Congress can levy any tax it wants as long as it’s not a “direct tax,” and then it can still levy any tax it wants as long as its in proportion to population. SCOTUS hasn’t ruled anything to be a “direct tax” since, IIRC, it ruled the income tax was one in 1895. That decision would almost assuredly have been overturned since then had the 16th amendment not made it necessary.
“Why not let anybody who pays for a child’s healthcare/education/whathaveyou take a tax deduction, instead of just the parents?””
Whatever the virtues of this, surely, Brett, you don’t feel that it would comprehensively help all or most children in poverty in the U.S.? Surely you agree that any increased aid as a result would be haphazard, at best? (As well as opening up another channel for tax fraud, but that’s another question.) How would it be a “solution,” as opposed to, at best, a faint amelioration, of child poverty?
I must have missed something — is it actually a topic of debate as to why the Constitution would limit taxation more severely than spending?
Isn’t the simplest answer the accurate one– abuse of taxation having a far greater potential for harm than abuse of spending?
Brett: I think the number of people who really truly are concerned about the inconsistencies between the Constitution and the manner in which Congress exercises its spending power is less than 0.0001 percent. You (and Sebastian) never going to succeed in calling a constitutional convention with those kinds of number.
(It’s also worth considering that a Supreme Court that takes an expansive enough view of its power as to invalidate federal budgets may also take an expansive view of its ability to invalidate state laws on, say, abortion, as interfering with the liberty interests established in the Bill of Rights. You may want to be careful what you ask for.)
More broadly, why fight federal spending in this area when it makes you sound so incredibly mean-spirited? Isn’t there an incredible array of federal spending — like the Farm Bill — where your attack on the legitimacy of the spending (violates both the Constition and WTO rulings) as well as the wisdom of the spending (bad public policy) would gain you many more allies? (myself included.)
This isn’t true
My bad. I knew that the income tax had required an amendment at one point, and misinterpreted Seb’s ‘hypothetical with multiple negatives on top’ to mean that this was the grounds for the decision.
(btw Seb, I’ve looked at that sentence like 10 times now, and it still isn’t clear to me. Shouldn’t the last bit be “would” instead of “wouldn’t”, if you’re saying that a broad reading of one part ought to imply a broad reading of the other? Or, more generally, did I draw the correct conclusion above?)
More broadly, why fight federal spending in this area when it makes you sound so incredibly mean-spirited? Isn’t there an incredible array of federal spending — like the Farm Bill — where your attack on the legitimacy of the spending (violates both the Constition…
That seems wrong to me. We shouldn’t drag out these sorts of arguments only for things we don’t like, otherwise we’re never debating on the merits. And we’re implicitly admitting that the argument itself is bunk (unless one is an anarchist).
It’d be like making breathing a capital offense so that we could execute child molesters.
“More broadly, why fight federal spending in this area when it makes you sound so incredibly mean-spirited?”
1. ‘Cause the topic of the post wasn’t the Farm bill. Post about the Farm bill, and I’ll give you an earful. Had a neighbor who used milk subsidizes to fund his hobby dairy farm.
2. What makes you think I give a rat’s ass about whether I sound “incredibly mean spirited” to the sort of people whose measure of whether or not you’re mean spirited is your willingness to have the federal government spend somebody else’s money on a problem?
“Isn’t the simplest answer the accurate one– abuse of taxation having a far greater potential for harm than abuse of spending?”
In modern deficit spending regimes the abuse of spending and abuse of taxation end up being the same thing–just spread out over time.
However you want to slice it rea and/or Carleton, many of the new Deal reforms were ruled unconstitutional at the time. They became constitutional after the President threatened the Supreme Court and the Supreme Court reversed its positions in a way that is relatively shocking.
From a practical point of view, that is a barn door that has been open far too long to make complaints about shutting it worthwhile–the animals are loose, make of that what we will.
Frankly I don’t understand the argument for bothering with the ennumeration of powers if you are going to start with unlimited powers. It seems to me that if everything were covered, you would just outline the exceptions: Congress can do anything except have a post office.
But that may just be a failure of imagination on my part.
I would tend to think that the general welfare in this situation is meant to describe implementation–Congress can’t just run a post office for the States it likes, it has to provide it for all of them.
‘Cause the topic of the post wasn’t the Farm bill.
and
the sort of people whose measure of whether or not you’re mean spirited is your willingness to have the federal government spend somebody else’s money on a problem?
People don’t consider you mean spirited because of your lack of willingness to spend somebody else’s money on any problem, they consider you mean spirited because you don’t want to spend money on *this* problem. It’s an important distinction to remember. People might also think you were mean spirited because you iirc want to spend somebody else’s money to build a wall to keep illegal aliens out. Thus, the measure of meanspiritedness is not the fact that you spend money or not, it’s what for purpose when you do spend it.
However you want to slice it rea and/or Carleton, many of the new Deal reforms were ruled unconstitutional at the time.
And why must we take that court’s decisions at face value while discounting the many decisions since that time? Or, better yet, since we’re discounting the USSC as the final arbiter, why should I respect that court’s decision at all, rather than working from first principles?
Also, FDR appointed 8 justices after 1937; there doesn’t seem to be any question that these justices supported the constitutionality of the New Deal, almost certainly regardless of the failed court-packing legislation of 1937. So it seems to me that the court-packing incident is a red herring.
Weren’t the new deal reversal opinions and the opinions they reversed mostly 5-4 decisions? That’s what I seem to recall. It would be one thing if they completely flipped from 9-0 one way to 9-0 the other, but one justice changing his mind doesn’t seem that shocking (if i’m recalling correctly).
I do think there’s something to the argument that the economy had changed enough from the time when most people never traveled more than a mile from the place where they were born in their lifetime to the economy in early part of the 20th century to give Congress a freer hand to regulate commerce – though that obviously didn’t take place in the years durnig the switch in time.
many of the new Deal reforms were ruled unconstitutional at the time. They became constitutional after the President threatened the Supreme Court and the Supreme Court reversed its positions in a way that is relatively shocking
SH: you are not at your most persuasive when you’re this vague. Findlaw’s history of the spending power supports what ugh and rea are saying — that the debate over the scope of the spending power goes back the earliest days of the nation, and the Hamiltonian broad view of the power won.
The FDR revolution was much more about the Commerce Clause, iirc.
Carleton,
You’re two stepping here. You were the one who appealed to the sense of the Court in “It’s true that USSC has interpreted the Taxation Clause very narrowly, but they’ve also interpreted the spending clause broadly.” Take the court seriously or don’t, but please choose one side per argument.
The switch occurred before the appointments, so I don’t see how the court packing incident could be considered a red herring.
Ugh, “It would be one thing if they completely flipped from 9-0 one way to 9-0 the other, but one justice changing his mind doesn’t seem that shocking (if i’m recalling correctly).” Owen Roberts’ switch was very radical considering his own previous opinions. If Marshall had suddenly decided that the death penalty was ok, it would be really odd considering his previous decisions.
However you want to slice it rea and/or Carleton, many of the new Deal reforms were ruled unconstitutional at the time.
But Sebastian, they were not ruled unconstitutional on the basis of purported limits on the spending power, so the fact that they were ruled unconstitional doesn’t support an argument for limits on the spending power.
The issue that the Supreme Court reversed position on supposedly in reaction to Roosevelt’s proposal to increase the number of justices, was whether a minimum wage law was an unconstitutional impairment of freedom to contract.
The key decision holding part of the New Deal unconstitutional turned on whether the commerce clause allowed comprehensive federal wage and price setting, and whether the scheme Congress had adopted amounted to impermissible delegation of legislative power to the executive.
For the record, I consider Brett mean-spirited because he apparently feels that the paper-pusher behind the desk down at WIC doesn’t do enough to make the poor parents who want some Cheerios, milk and cheese feel more ashamed for not earning sufficient minimum wage income to feed their children. But that’s neither here nor there.
Otherwise, what LJ said. I’m also thisclose to asking Brett what he gave to charity last year, but it’s probably a tasteless and counterproductive question.
“Findlaw’s history of the spending power supports what ugh and rea are saying — that the debate over the scope of the spending power goes back the earliest days of the nation, and the Hamiltonian broad view of the power won.”
The Hamiltonian view was NOT that any-old spending counted. Whether a health insurance program would have counted pre-New Deal is something I don’t have firm opinion on, but the idea that it was a slam dunk because ‘general welfare’ means any-old-thing is not something I can sign on to. I don’t believe the modern liberal theory of jurisprudence which interprets general concepts in the Constitution so broadly as to make huge portions of it completely superfluous.
I think it is a particularly silly version of jurisprudence to believe that the framers wrote:
if they had already said–“Congress can do anything for the good of the nation”. No matter how vague you can convince me things are, you can’t get me to buy that.
Brett: I apologize for calling you mean-spirited. That was uncalled-for and rude.
What I was trying to get at is that it seems to me that there are areas of federal spending in which you are far more likely to build coalitions across party lines and across theories of constitutional interpretation.
Phil: I’m also thisclose to asking Brett what he gave to charity last year, but it’s probably a tasteless and counterproductive question.
I’m considering mentioning that I also considered asking Brett that question three hours ago, and decided then it was tasteless and counterproductive, but I’m afraid that Von, DaveC, and OCSteve will take this as further evidence that we can be classified as members of the same species, when at most, we’re just in the same genera.
Brett: your willingness to have the federal government spend somebody else’s money on a problem?
So, instead: why do you assume that no one on this blog pays income tax? (Obviously, I don’t pay US federal income tax, but I do pay income tax and NI tax towards the health care in my country.) If you pay income tax, it’s not “somebody else’s money”: it’s yours. (Along with a whole lot of other people, of course, but partially yours.)
You’re two stepping here. You were the one who appealed to the sense of the Court in “It’s true that USSC has interpreted the Taxation Clause very narrowly, but they’ve also interpreted the spending clause broadly.” Take the court seriously or don’t, but please choose one side per argument.
Actually, I was trying to stop you from doing that, I was just more polite about it. I said that if you want to use the court’s interpretation of one clause, then you have to give some weight to their interpretation of the other clause. If-then clauses don’t imply the truth of the antecedent.
To recap, right after what you quoted, I said you can’t reasonably use their limited interpretation of “The Congress shall have Power To lay and collect Taxes” as *more* controlling than their broad interpretation of “welfare of the United States” in understanding that second clause. At least, I don’t see how that could be justified. Again, Im talking about *you* two-stepping (and perhaps tripping on your own feet?), not me.
The switch occurred before the appointments, so I don’t see how the court packing incident could be considered a red herring.
The point is that even without the court-packing, FDR’s view of the Constitution would certainly have been the USSC’s view in 1945, because he had appointed virtually the entire court. Ascribing the Court’s ongoing opinion to a single, failed incident is flawed thinking in face of this fact.
Imagine that the incident never occurred; FDR still appoints 8 justices who would favor expanded federal powers. And, in that hypothetical, there’d be no reason to call the USSC’s decisions compromised. Ergo, there’s no reason to call them that now.
People might also think you were mean spirited because you iirc want to spend somebody else’s money to build a wall to keep illegal aliens out.
Brett- is this accurate? My fingers are too tired to google.
Carleton, you need to read the whole thread. I didn’t appeal Supreme Court’s interpretation of the clause earlier.
My point from the beginning was that institutions rarely give up the power they take for themselves. In saying that, I was talking about Congress and the Presidency. Other people insisted that I ought to be talking about the Supreme Court, but I wasn’t. I was talking about the Congress and the Presidency. I’ve gotten sucked into a talk about the Supreme Court since then but my point was that Congress and the President took powers for themselves, pushed the Court into allowing it, and haven’t ever given them back.
“Imagine that the incident never occurred; FDR still appoints 8 justices who would favor expanded federal powers. And, in that hypothetical, there’d be no reason to call the USSC’s decisions compromised.”
Interesting how we never have to mention little things like the actual Constitution in that theory.
In light of the newly discovered common ground that finds Phil next to Jes 8^O, I cracked open another TiO thread.
Interesting how we never have to mention little things like the actual Constitution in that theory.
The Constitutional interpretation of the USSC has ranged from reasonable to downright bizarre.
That’s not the point at all- my point wasn’t about the text, it was about the interpretation of the text. I think it’s unreasonable to maintain that FDR’s appointees only ruled for increased federal power bc of intimidation. He appointed them bc he agreed with their vision of the Constitution. Outside of what I said above about decisions being bizarre, if we’re going to accept any decisions as definitive we really ought to be accepting all of them- and that includes the post-FDR court’s decisions. Or we can accept none of them, but then variations of your criticism of the court’s New Deal jurisprudence could be applied to any number of USSC decisions.
…and haven’t ever given them back.
The reason you actually are talking about the Supreme Court is that the Court has to affirm this position. And it has, over and over. Someone asked earlier how zombie FDR is still compelling the Court to agree with him…
I mean, sure Congress wants to keep the power, but they can’t do it on their own.
Carleton, you need to read the whole thread. I didn’t appeal Supreme Court’s interpretation of the clause earlier.
I don’t know how else to interpret your comment. Of course, I also found it difficult to parse… but it seems to say that the USSC’s interpretation of clause A had more weight in interpreting clause B than their interpretation of clause B. To me, that looks like multiplying probabilities- the probably of X and Y can’t be more than the probably of X. Likewise, relying on one interpretation to discredit another doesn’t make sense to me.
But maybe you’d like to clarify: what did you mean by If the ‘general Welfare’ clause is as super-broad as you think, I don’t see why the tax power clause wouldn’t be so narrow.
Why don’t you consider private charity as a solution?
I think sticking a gun in people’s faces and telling them to contribute to your favorite charity or be locked up in a small room is unfair.
First, I tip my cap to Brett for arguing the minority position here. It ain’t an easy job.
A couple of things.
First, why is it only sticking a gun in people’s face when it’s the feds? Why isn’t taxation at any level of government equally odious?
Second, why is taxation to fund health insurance any worse than the other 100,000 things we pay for through taxes?
Why not get rid of Social Security, Medicare, and Medicaid? Those are the most expensive items in the budget by far. Let everyone plan for their own retirement and potential ill health.
Why not get rid of public schools and libraries? If you want your kid to get an education, get together with your friends and hire some teachers.
Why not get rid of the US Postal Service? There are private carriers to carry the mail.
Why should there be a tax writeoff for mortgage interest? If you want to buy a house, buy one. Don’t ask me to subsidize it through a tax incentive.
Why should there be writeoffs for business or investment losses? If you put your capital at risk and don’t do well, you lose. That’s what “risk” means. Don’t ask me to subsidize it.
Why should there be tax writeoffs for business expenses and capital investment? Again, if these expenses are justified on their merits, great. Don’t ask me to help you pay for it.
You get the idea.
As I make it out, the reason we fund all of the above through taxes is that it is, broadly, in the public interest to do so. I’m a big lefty, so that doesn’t bother me at all.
What’s different about funding health insurance or health coverage?
Thanks –
“I’m also this close to asking Brett what he gave to charity last year”
$200 a month make you happy, chuckles?
With regards to spending other people’s money, we happen to have a ‘progressive’ income tax in this country, much as it disgusts me. Meaning that most of the cost of government is paid by a small fraction of the population. The logical implication of this, in case you didn’t notice, is that most people advocating government spending are advocating spending somebody else’s money.
The “I’d ask a rude personal question but that would be rude” praeteritio above doesn’t help.
“The logical implication of this, in case you didn’t notice, is that most people advocating government spending are advocating spending somebody else’s money.”
Bush says, “It’s your money”, not addressing only the top 1%. I hope. If I’m a zillionaire and want to live in a democracy, how do I avoid my voice being privileged by your argument?
What differences are there between your proposal and the way it is now? And how more efficient/lucrative is it likely to be?
(And I wouldn’t call Brett mean spirited. I might call him unfamiliar with how the philanthropy, charities and non-profits work, based on what he’s said, however…)
This is also the case with charities. 90% of the money comes from 10% of the people (now tending toward 95/5).
In the words of the famous poster: What if libraries and hospitals were fully funded and the Pentagon had to have a bake sale?
The logical implication of this, in case you didn’t notice, is that most people advocating government spending are advocating spending somebody else’s money.
They may be spending more of other people’s money than they are of their own (so what sez I), but if I’m not spending my money on “someone else’s problem” (like I’m not going to need a doctor in 25 years time), I need a BIG refund.
BTW, why is the first reaction of libertarians to tax issues ALWAYS the “gun in the face”? Don’t they realize that it undercuts any valid objection they might make?
“This is also the case with charities. 90% of the money comes from 10% of the people (now tending toward 95/5).”
But Brett will point out that this is voluntary. He’s doing the whole “taxation is coercion” thing, not neglecting the usual use of “guns” and “thugs” for emotional resonance.
It’s an axiomatic difference between libertarians and non-liberatians (and why I wouldn’t label myself a “libertarian,” although I happen to be strongly and fundamentally for liberty, and as a matter of practice agree with a number of libertarian opinions to one degree or another — but not as an absolute, or the only value — and most particularly I don’t accept the whole “all coercion is illegitimate” argument) and it seems inarguable except at either a deeper philosophical level — which I don’t have the technical tools to engage in, myself — or emotionally or via other means of argument I don’t accept as legitimate.
But I always enjoy seeing “guns” and “thugs” invoked, though we’ve yet to get to pointing out their jackboots.
My apologies to Brett; I was hasty, and careless: he didn’t use either the word “guns” or “thugs”; he invoked “jail[ing] people.” Sorry about that, Brett.
Not so fast with the apology, Gary. Upthread he said those of us who supported government spending on the social safety net wanted to have tax evaders shot.
“Upthread he said those of us who supported government spending on the social safety net wanted to have tax evaders shot.”
Yes, I didn’t withdraw my point, which I believe is perfectly valid; I withdrew and apologized for my error in my specific assertion that he used the words “guns” and “thugs” in this thread.
Meaning that most of the cost of government is paid by a small fraction of the population.
It’s hard to think of a time in this nation’s history when that wasn’t so. Long before we had an income tax at all, we ran the country on tariffs and luxury taxes.
most people advocating government spending are advocating spending somebody else’s money.
Could be. For the record, and FWIW, not me.
Thanks –
Sebastian said: “If we believe that it is a duty to provide basic human needs, that IS charity whether or not the government does it.”
Some advocates of universal healthcare argue that access to healthcare should be conceived of as a right rather than a commodity. If healthcare is a matter of right, then it ceases to be a commodity. And if it isn’t a commodity, then it isn’t something that one can be said to earn or be granted through charity.
Now, one might object: Since healthcare has to be bought and paid for, it is always a commodity in fact, if not in name. So, if healthcare is provided to someone otherwise unable to pay for it himself, that’s charity plain and simple.
The objection seems to me mistaken. Not everything bought and paid for is a commodity. For example, we don’t ordinarily think of free speech as a commodity, but maintaining it costs a lot of money. The court system is expensive. Still, freedom of speech isn’t granted as charity, at least as we usually understand that term. Everybody pays for it, and everyone gets it.
Uh, “everything” should be: every thing. Shoot.
Well, yes, but my point is that you can’t point to non-profits as a superior method, even if its voluntary, when government is mimicking what non-profits are doing; “fairness” arguments rings a bit hollowly as it suggests money gathering HAS to be following this kind of model to be effective.
And, I seem to recall that while most money collected DOES come from the rich, it’s not quite at the disproportionate level of charities (though I could be wrong about that).
I’m curious, what difference is there between healthcare and education that makes one charity and the other not? Or is education a charity as well, but one we can live with?
Are public roads a charitable gift? Is use of an army/navy to protect a country and its citizens a charitable contribution to the citizenry by the volunteer military? How about police? Paid fire department? The diplomatic corps? Collecting garbage?
to say nothing of creating & enforcing the right to private property.
$200 a month make you happy, chuckles?
1. I have a name. It’s right there. Use it or don’t address me at all.
2. I genuinely don’t care, although it does make you one of the rare ones who actually puts his money where his mouth is.
With regards to spending other people’s money, we happen to have a ‘progressive’ income tax in this country, much as it disgusts me. Meaning that most of the cost of government is paid by a small fraction of the population.
Much of the wealth in the country is also held by a small fraction of the population. The rest of the problem is left as an exercise for the reader. (Although you may want to look into what percentiles actually pay the most tax when sales taxes, payroll taxes, et al. are taken into account.)
The logical implication of this, in case you didn’t notice, is that most people advocating government spending are advocating spending somebody else’s money.
Blah, blah, blah. We all pay, and it all goes into the same frigging pot. The people who hold the most wealth and pay the most taxes certainly benefit enough from what government does for them.
The logical implication of this, in case you didn’t notice, is that most people advocating government spending are advocating spending somebody else’s money.
that’s why Brett won’t drive on public roads, eat food made from government-subsidized crops or inspected by the USDA, listen to weather forecasts from the National Weather Service, set foot in any court building, fly on planes that are inspected under the guidance the FAA, etc..
it’s a hard life, being an ideologue, but the knowledge that you’re not enjoying the benefits of pooled tax dollars makes all those nights spent alone squatting in your lean-to worth it!
Brett says: “You see, that’s one of the problems with government “entitlements”; They’re not condescending. The sting of depending on charity is, after all, one of the things which motivates people to support themselves.”
Unfortunately, this kind of moralizing -not entirely without virtue, perhaps, but as hopelessly out of place today as an ox-drawn wagon on the freeway – also prevades those gov’t ‘entitlements’ that can be conceived as going to Them, for various values of Them (not including giant mutant ants, presumably). See for example – just to grab something recently read – Monday Afternoon at the Welfare Office.
Katherine, thanks for that thought.
Katherine, I’m right there with you regarding the enforcement of property rights, but I am curious regarding your statement that government creates property rights. Is it your opinion that rights are something granted to people by governments, or are there some rights that people hold (setting whether or not they can enforce them aside) extrinsic to what government is willing to grant them? Thank you.
Sebastian and Brett, let me make clear that I find the tone of this thread is unhelpful and unfortunate, and I didn’t make my comment in the spirit of a pile-on.
G’Kar: FWIW, ordinary usage tracks Katherine’s comment, I think. Rights are created. The creation of rights is coeval with the creation of a system for enforcing rights. Absent such a system, rights do not exist. Maybe they ought to exist, but they don’t.
Of stateless persons in Nazi territories during WWII, we would not say: “They’re rights are not being respected.” We would say: “They have no rights.” Of African Americans under Jim Crow, we would say: “They’re rights are not being respected.” We would not say: “They have no rights.” The difference is that the rights of African Americans were encoded in Federal law, but the courts weren’t following the law. Whereas, with black South Africans, the courts were following the law; it’s just that the law did not include robust rights for blacks.
Now, whether ordinary usage tracks the metaphysics of morals, I don’t know. Maybe it does; maybe it doesn’t. In any case, I have laundry to do.
“FWIW, ordinary usage tracks Katherine’s comment, I think. Rights are created.”
For the most part I think this is incorrect. The ordinary usage of ‘rights’ especially as in ‘human rights’ (but also as in ‘property rights’) suggests that they are something that people have whether or not the government respects them. To take your extreme example of the Nazis, Jews had the right not to be murdered and subjected to genocide no matter what the formal rules of the German state were.
I think you last sentence has it flipped around. The more academic analysis of metaphysics of morals might talk about the creation of rights, but your average person using the term in its average way doesn’t think of ‘rights’ as a formal process of government creation. When pro-choice women say “I have a right to control my own body” it isn’t footnoted with “so long as the government says so” even in their minds. It is a moral argument about how the law ought to conform to something much bigger and more important than mere governmental codification.
Sebastian: When pro-choice women say “I have a right to control my own body” it isn’t footnoted with “so long as the government says so” even in their minds.
Actually, it is acknowledged that the government has the ability to remove a woman’s right to control her own body, and leave only the practical fact that, unless a government is willing to institute monthly pregnancy tests and an automatic prison sentence under 24-hour observation for every woman who tests positive, women will strive to control our own bodies, regardless of the law removing a woman’s right to do so.
Thank you all for a most interesting set of diversions this morning. I can’t contribute as knowledgeably as others, but can’t resist putting down an opinion, either.
I tend to find myself starting from Hayek: “There is no reason why, in a society which has reached the general level of wealth ours has, the first kind of security should not be guaranteed to all without endangering general freedom; that is: some minimum of food, shelter and clothing, sufficient to preserve health. Nor is there any reason why the state should not help to organize a comprehensive system of social insurance in providing for those common hazards of life against which few can make adequate provision.”
Preserving health has become more complicated than it was when Hayek wrote that; and more expensive as well, to such a degree that it is possible to successfully treat many conditions, but at an expense such that few can make adequate provision for paying for it themselves. Put me in the camp that believes that medical insurance would be covered by his statement.
The remaining debate would seem to be about means, effectiveness, and efficiency. Charity is generally inefficient in the sense that it cannot provide guarantees; that doesn’t stop me from making contributions to what I perceive to be good causes, but I don’t think we can be dependent on it either. And if you accept Hayek’s position that such a minimum should be a guarantee, there is no reason for demeaning those who require assistance.
Finally, as to the shift in power between the federal government and the states, I find myself thinking in terms of physical mobility. When the Constitution was written, it could take weeks to make the trip from Virginia to Boston; today we fly from LA to NYC in less than six hours, or move an entire household that same distance in a matter of days. It seems to me that a contemporary reading of the Constitution must be done in light of far greater movement of people (and goods, and on and on) between States than the original authors could have conceived of. This shifts the balance of power between state and federal governments.
I think, again, we are confusing legal rights with human rights. Pre-Roe, it was still argued that a woman had a right to control her own body, despite the fact that it was not legal to have an abortion. The argument isn’t very effective otherwise.
Everyone acknowledges that governments have the capability of squashing people like bugs under a shoe. Whether or not that is under color of law for the most part doesn’t change the discussion. Sending people to the gulag was perfectly legal under the Soviet system, but it violated its victim’s human rights nonetheless.
This harkens back to the Enlightenment and Romantic views of the Magna Carta–whether or not it formally represented an ‘agreement’ with the Crown, in reality it merely reflected the rights of the people as they existed independent of the document itself–see for example Samuel Johnson’s many discussions. Interestingly see Jonathan Swift for the alternative view–that Parliament had unlimited power.
In any case, my sense of the actual usuage of rights by non politicians/lawyers/academics is as if the right existed whether or not it was a ‘legal right’. In fact the whole concept of ‘legal right’ suggests that it is a more limited set of rights–the rights set down into law as opposed to merely unmodified ‘rights’.
I’ll concede that the state has the ability to take away any number of rights. But I do not believe, for example, that the fact Congress passed and George Bush signed McCain-Feingold means that I no longer have the right to free speech, but only that the government is attempting to take away rather than protect that right.
Sending people to the gulag was perfectly legal under the Soviet system, but it violated its victim’s human rights nonetheless.
Fair point: I was confusing legal right with human rights. Yes; denying women the right to decide to abort is legal in many countries, but it is still a violation of human rights.
A brief comment, offered with fear and trepidation, on the use of abortion as the example of whether rights are inherent or granted by the state.
The question regarding abortion is, I think, less one of whether women have an inalienable right to do as they wish with their bodies, or not. If I understand the debate correctly, it has more to do with balancing women’s rights against those of the fetus.
The reason it’s such a thorny issue is that each person’s opinion of what, exactly, the standing of the fetus is depends on lots of other factors, which are extrinsic to law.
For the record, I’m not taking a side in that debate here, I’m just making an observation.
I will put myself in the “rights are inherent” column, however. IMVHO, law and similar institutions flow from human understanding and experience, rather than creating them.
Thanks –
That is an excellent point, russell. I concur with your analysis; this is, I believe, what makes abortion such a contentious issue.
Somewhere in the mists of time there was a thread in which I believe hilzoy critiqued the libertarian concept of property and specifically argued that property was not a natural right. I’m on a mobile device and can’t easily search , but someone else might find it.
If I understand the debate correctly, it has more to do with balancing women’s rights against those of the fetus.
That is certainly how pro-lifers prefer to frame the debate: when a woman’s human rights should be abrogated, and for what cause, rather than stepping back and acknowledging that there’s a real question if a woman’s human rights should be abrogated, and why there’s even an argument that some human beings ought to have their human rights abrogated, because if they were permitted inalienable human rights they’d be sure to make bad use of them. (That is: the pro-lifer argument is that if women have abortion on demand as a legal right, women will inevitably start having late-term abortions for reasons pro-lifers regard as frivolous.)
Well, I cannot speak for pro-life people, as I believe that a woman ought to have the right to an abortion whenever she so chooses, but I think that the conflict remains one of opposing rights nonetheless. I don’t know when a fetus becomes a human being, and I don’t think there is ever likely to be a bright line, but clearly it happens at some point, and I think that point is before birth. Still, I think that the woman’s right has to trump the fetus/child’s right simply because until birth, the child is within the woman’s body and if we don’t have the right to decide what we’re going to do with our bodies, then any discussion of rights seems to me likely to end pretty quickly. So I don’t think that the argument is merely a rhetorical tactic of pro-lifers.
Well, I cannot speak for pro-life people, as I believe that a woman ought to have the right to an abortion whenever she so chooses, but I think that the conflict remains one of opposing rights nonetheless. I don’t know when a fetus becomes a human being, and I don’t think there is ever likely to be a bright line, but clearly it happens at some point, and I think that point is before birth. Still, I think that the woman’s right has to trump the fetus/child’s right simply because until birth, the child is within the woman’s body and if we don’t have the right to decide what we’re going to do with our bodies, then any discussion of rights seems to me likely to end pretty quickly. So I don’t think that the argument is merely a rhetorical tactic of pro-lifers.
I think it is a particularly silly version of jurisprudence to believe that the framers wrote: [list of exress powers granted in Art I, Sec. 8, other than the powers to tax and spend]if they had already said–“Congress can do anything for the good of the nation”. No matter how vague you can convince me things are, you can’t get me to buy that.
Well, of course, what you are failing to recognize is that there are other things Congress can do with a problem besides spend money on it. A broad grant of power to spend for the general welfare does not, for example, render the subsequent grant of power to regulate interstate commerce meaningless–there are all sorts of ways to regulate interstate commerce without spending money. The Constitution isn’t “vague” at all in this regard–it’s quite explicit.
Your problem, Sebastian, is that you want the Constitution to say something other than what it says, and something other than what the founders understood it to mean. You distrust the government–particularly the legislative and judical branches–more than the founders did.
G’Kar: Idon’t know when a fetus becomes a human being, and I don’t think there is ever likely to be a bright line, but clearly it happens at some point, and I think that point is before birth.
But that’s irrelevant, if you consider a woman to be human, with inalienable human rights. There are no competing rights to be considered: there is no human right to make use of another human being’s body against her will, not even to stay alive.
Still, I think that the woman’s right has to trump the fetus/child’s right simply because until birth, the child is within the woman’s body and if we don’t have the right to decide what we’re going to do with our bodies, then any discussion of rights seems to me likely to end pretty quickly.
….Sorry, I should have read your whole comment first (I have as yet had no sleep, thanks to Pötterdämmerung): I see that while we’re not expressing it quite the same way, we’re definitely in agreement.
Sebastian, I’ll concede much of your point. Sometimes, some people do, in fact, argue: So-and-so ought to have such-and-such a legal, because so-and-so natually has such-and-such a human right. That type of argument appears to be underwritten by a different ontology of rights than the statements I mentioned before.
The lesson I draw from this isn’t onotological. It was never meant to be. It was just an observation about what people tend to say. My views about rights are independent of my views about ordinary speech.
You’ve impressed on me that ordinary speech about rights is rather unsystematic. The more I think about it, the more I realize that people say all sorts of things about rights! My first approximation was insufficiently nuanced.
Your reference to Samuel Johnson suggests that the rhetoric of rights (that is, non-legal rights) is older than I previously supposed. Can you give me a citation? I’d appreciate it.
Jes: “… Pötterdämmerung …”
(raises coffee mug in appreciation; curses the difference in time zones, which means that my copy has yet to arrive. Although I could have just bought one …)
(And I cleverly went to sleep without taking off the lightning-bolt tattoo that the kid next door gave me, and it sort of transferred itself off my forehead. I now know what Harry Potter would look like were he a rumply old pillow.)
I’ve been seeing Pötterdämmerung around the Internets for a week or so: I thought it was brilliant, too.
And I have just – on minimal sleep and a great too much coffee – finished reading Harry Potter and the Deathly Hallows. I should have gone to sleep at least an hour ago, but I couldn’t till I’d got to the end.
It was definitely worth it, though.