Judicial Activism?
In a lawsuit brought by 26 states, a Florida judge ruled President Obama’s health care law unconstitutional. A post by Stephanie Cutter, Assistant to the President and Deputy Senior Advisor, quickly labeled the ruling an act of “judicial activism.” For many conservatives, this sounds very strange, yet this is a perfect example of the difference between liberals and conservatives when it comes to the courts and the Constitution.
The Constitution is the basis for the federal government. It defines the structure of the federal government and enumerates what it can do. The tenth amendment states that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” In other words, if the Constitution does not delegate a power to the Federal government, the Federal government does not have that power.
At the core of this discussion is the key provision of ObamaCare that requires individuals to purchase health insurance. Article 1, Section 8, Clause 3 says that Congress has the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” So the question really boils down to: does the power to regulate interstate commerce include the power to force individuals to purchase Health Insurance?
On the face of it, this would seem pretty clear cut. No. How can someone not doing something, i.e., not purchasing health insurance, be deemed to be engaging in interstate commerce? This is particularly true in that currently you cannot even purchase health insurance across state lines. So if you cannot purchase health insurance interstate, how can failing to purchase health insurance be deemed to be interstate commerce? The mandate falls on everyone living in the United States, but in what way is simply living in the United States a form of interstate commerce?
If looked at another way, if the government can pass a law making it illegal not to purchase health insurance, then would there be any limit on what they could do? There wouldn’t? Why not pass a federal law making it illegal not to purchase a place to live, or requiring everyone to purchase a gun or purchase anything the current government wants you to purchase?
At its core, this issue comes down to the question: Do Constitutional limits on the federal government have any real meaning? In short, do they actually limit anything? Conservatives say yes. The Constitution is the governing document and must be followed, or, if need be, changed. Liberals effectively say no. They see the Constitution as a “Living Document” that needs to be understood in a fashion that conforms to the current needs of society. Of course, whatever they want to do is automatically seen as the current need of society that can supersede Constitution.
As a result, liberals and conservatives have different definitions of ‘judicial activism.’ To the conservative the job of a judge is to rule based on what the Constitution says. Judges who ignore the Constitution and rule based on what they think the Constitution should say are activist judges. To the liberal the job of a judge is to adapt the Constitution to their understanding of the needs of society. Judges who ignore their understanding of the current needs, and rule based on what the Constitution actually says are activist judges.
Thus, the White House blog critical of the ruling does not claim that it conflicts with what the Constitution says, but rather “decades of Supreme Court precedent.” The claim is at best questionable, but either way, the White House does not point to the commerce clause itself, but rather court rulings that have expanded the notion of interstate commerce into new areas, that hitherto and not been considered either interstate or commerce.
So the bottom line for this question is do Constitutional limits on the federal government actually limit anything, or can they be ignored at will? Sadly, until this is decided by the Supreme Court, we won’t really know, but that is a different problem.
Profits Part I
One of the constant complaints from the left for over a century has to do with the whole notion of profits and it shows no signs of letting up. Be it the Big Oil companies gouging consumers at the pump, Big Pharma gouging people for drugs they need to keep them alive, or Big Insurance denying health care to the patients who need it so that they can pocket huge profits, a consistent theme from the left is the denunciation of profits.
While “Big Oil” does currently make billions in profits, profit is not a standalone concept. For example, a one million dollar profit may seem large, what if this profit came on an investment of one billion dollars and after many years of losses? Then there is number of people who get the profit. While one million might fine for one owner, what it must be spread among 100 stockholders or a thousand or more? Then there is the whole concept of reinvestment.
Yes, oil companies do make a lot of money; they also invest a lot of money, do all the work, bare all the risk, and yet make significantly less on a gallon of gas than does government. Whereas oil companies earn about 10 cents per gallon, the Federal Government gets 18.4 cents and then there are the state taxes and sales taxes on top of that. Then there is the income tax on the profits that they do make. What is left after taxes, they then either reinvest back into the business or pay out to their stockholders. When President Obama put his “boot on the throat” of BP and successfully pressured them into not paying dividend following the Gulf oil spill, it was not the fat cats who suffered but millions of average workers and retirees in Britain.
As for the Health Insurance companies, there are two facts that are often ignored. One is that a number of health insurance companies are already Not-For-Profit, and those that are For-Profit, their profits, according to a report on ABC News, “represent a miniscule percentage of the $2.5 trillion Americans spend every year on health care.”
As for Big Pharma’s profits, normally the focus is on the cost to manufacture drugs, which is often a fraction of the sale price. What is often ignored is the literally billions spent to develop these drugs, a large part of which come from their profits from previous drugs. If the companies were really raking in the huge profits critics claim, then their stock prices should be sky high. Yet they aren’t. Investors in Pfizer, for example, have lost 25% over the last 10 years.
In fact, rather than making too much, pharmaceutical companies may be making too little. This is a real concern for while recently developed drugs are quite expense, it is the profits from these drugs that fund the current research into new drugs. If those complaining about high drug profits had gotten their way in the past, then we would not have the problem of the high cost of the medicine, simply because the medicine would never have been developed. With all the attacks on drug company profits, it is probably not too surprising that the “drug pipelines are thinning.”
While the left may see profits as wasteful at best and perhaps even evil, they are what drive the economic system that has brought the highest standard of living in human history. Removing the profit motive will not make things better; they will make things worse, and probably a lot worse. More on that in Part II.
State of the Union
Obama’s State of the Union speech while delivered well was a triumph of symbolism and platitudes over substance, which was mirrored in the seating arrangements of the members of Congress. It may have been all nice, warm and fuzzy, but ultimately it was meaningless. The seating arrangements were supposed to reflect the new civility and willingness to work together. Yet there is a reason that members of both parties don’t just “work together to solve the nation’s problems.” It has nothing to do with them not getting along.
The simple fact is that, except of a few hyper-partisan members, they all get along pretty well. The problem is not that they don’t get along, or even that they don’t work together, but that they don’t agree on what should be done. These are not just partisan disagreements, but are in fact honest difference of opinion on what should be done.
Most liberals really do think that a larger federal government will be able to make people’s lives better; that the solution to the problems with schools is to be found in more federal spending on education; that the solution to the problems with health care is to be found in more federal control over health care, and for many this means a single payer system; that the solution to virtually every problem be it energy, the environment, failing inner cities, or unemployment, is to be found in more federal control and spending. To pay for this they believe that taxes on the rich are too low, and that the rich should pay more.
Most conservatives, on the other hand, really do think that the federal government is already too large and that it is either causing or exacerbating these very same problems; that the solution to the problem with schools is to be found in less government control and more choice for parents; that the solution to the problems with health care is to be found in more choice and competition that would allow for innovation; the solution to virtually every problem be it energy, the environment, failing inner cities, or unemployment, is to be found in less federal control and spending, and more freedom and competition. They believe the taxes are already too high and that, along with burdensome regulation are stifling the economy.
When one side believes that government must increase to solve these problems and the other believes that government is already too big and must decrease to solve these problems what is the middle ground? There is none. The closest is perhaps Obama’s call in his speech for a budget freeze, for government to remain the same. But that is akin to no action rather than a solution. In addition just what does he mean by a budget freeze, when at the same time he is calling for increased “investment” in a whole range of areas i.e., expanding federal spending? Does he really want to freeze, or to invest?
This was the real problem with Obama’s speech. While delivered well and each section for the most part sounded ok, as a whole it was a little incoherent, which was best summarized by his somewhat confusing reference to a sputnik moment, a single event that drastically changes everyone’s perceptions. But just what single event does he see as his sputnik moment? His reference seemed to invoke a sputnik moment without a sputnik!
In short his speech strove for great heights, but somewhat fell flat. He clearly intended this speech to be central to his attempt to redefine is presidency and gain control of the debate. But ultimately he failed. It was not a bad speech. In fact it was a pretty normal State of the Union speech, but it was not the speech he had hoped for. If the speech is remembered at all, it will likely be remembered more for the seating arrangements of Congress than for anything he said, with the possible exception of that confusing sputnik reference.
Acting on Lies
One of the most disturbing aspects of the left is that truth is largely irrelevant. This is very clear in the aftermath of the shooting in Arizona. The news of the shooting had hardly broken before those on the left began blaming it on conservatives in general and Sarah Palin in particular. It was impossible that close to shooting to have any actual knowledge about who the murderer was or why he acted. But that did not matter. A Democratic congresswoman had been shot and this seemed to them a perfect time to score some political points. So the attacks were launched.
Over the next few days as the evidence about the murderer began to trickle in, it became clear to most that not only was the murderer not a follower of Sarah Palin, or even a conservative, but that the murders were not even politically motivated. Rather than being political, the murders were an irrational act by a very trouble individual.
Now if the left had even the smallest concern for the truth that should have been the end of it. In fact, had they been honorable, apologies would have been in order. But rather than apologize, they double down, touting crosshair maps that the murderer may never have even seen, much less been influence by. As the days passed Palin was attacked for not responding. When she finally did issue a video statement, she was then attacked for responding. Meanwhile, the talk about a climate of hate on the right being behind the murders continued.
Eventually the evidence became so clear that some back off just a bit, and climate of hate on the right simply became the climate of hate, ironically completely oblivious to the fact that accusing your opponents of complicity in murder contrary to the evidence, could easily be seen as hate speech itself.
But even thought the facts were completely contrary to what they were claiming, and even though some on the left admitted this, it did not stop them from acting on their false storyline. This murder may not have been motivated by contentious political debate, but the next one could be and thus we must ban it. As such, Republicans were pressured to drop “Job Killing” from the name of the Obama Care repeal bill, and a CNN host apologized for the mention of “crosshairs” in an interview. Change was demanded despite the evidence to the contrary.
This is not an isolated event. Most of the liberal agenda has been shown to be false. Whether it be the collapse of the old Soviet Union, China’s move towards more open markets, or Europe’s current financial woes, government control of the economy has been shown not to work. Yet as those who have tried it and failed struggle to deregulate and move to more market based solutions, those on the left in America still see solutions in more and bigger government programs.
One of the central beliefs of those of the left in the 1970s was the notion that there was no difference between men and women except those imposed on them by culture, a culture which was not only rejected but condemned. Given the importance of equality to the left, it became their mission to change the culture so that women’s full potential could be achieved. Women were not only encouraged to consider non-traditional roles; they were actively discouraged away from traditional ones as those roles were part of the culture that subjugated them
Parents were encouraged to raise their children exactly the same so as to remove these culturally determined differences. Boys were given dolls, girls were given trucks. Dresses had to go, and unisex clothing was in. In colleges, putting women in women’s dorms was treated as if were being asked to sit in the back of the bus. Sport programs were mandated to spend equal amounts of money on men’s and women’s sports regardless of the interest level of men and women.
In the major media, movies, schools and government, the left pushed to restructure all of society based on the notion that there was no difference between men and women. It reached a high point with the equal rights amendment in the early 1980s which was eventually defeated. Yet, by the early 1990s, if it had not already been clear enough, a slew of studies particularly on the brain showed conclusively that men and women are different in ways far beyond the cultural norms.
But again the facts, even if given lip service, were ignored, and the push to tread men and women as completely the same continued on despite the evidence. Coed dorms with men’s and women’s floors became, became coed floors, and now even coed rooms. Girls are raised to act more like boys. Boys are raised to act more like girls. But the underlying natures are still there even if repressed. Rather than, ‘boys will be boys,’ large numbers are medicated. At colleges depression among women has skyrocketed. Many women reach middle age wishing they could jettison the careers they were told by society would be so fulfilling. Rather they just want to spend more time with their family.
In area after area, there are what the facts support, and then there is what liberals want. Very often these are vastly different things. Yet liberals continue to push forward, all the while ignoring the wreckage that continues to pile up as a result.
Tu quoque or Double Standard?
One of the common responses that seems to come up whenever Liberals behave badly is, not so much outrage but rather, the excuse that “both side do it.” This is visible once again as it is now clear that liberal attacks on Sara Palin and conservatives following the shooting in Tucson were little more than an attempt to score political points off the tragedy. In addition to being untrue (note the lack attacks on liberals when a crazed environmentalist took hostages at the discovery channel building last September) there are two other problems with this claim.
One is that it is the logical fallacy of tu quoque, or “you also,” which is one of the many forms of ad hominem attack. That “both sides do it” is not an excuse for either side. It is illegitimate to excuse bad behavior by pointing to other bad behavior. If it is wrong, it is wrong. In addition to being illegitimate, it is dangerous because it becomes the rational for additional bad behavior. “After all, if the other side does it, so why shouldn’t we?” Thus this fallacy is not only irrational by definition, but can lead to a vicious cycle.
This is part of what is behind the not so new No Labels group, as they see bad behavior on both sides and thus seek another way. Technically this would not be the fallacy of tu quoque, as the No Labels group is not trying to excuse their own behavior, but it is still a form of ad hominem attack, and is still just as irrational. But in addition to this, and their other problems (see Preserving Democracy pg 188-191) the No Labels group has an addition factual problem here. In many cases, the charge that “both sides do it” is simply not correct. There is a difference between how the parties act and the standards to which they are held.
As wrote earlier, some of my liberal friends are using “Both sides do it” to rationalize way the cramming down of major legislation in the lame duck session, but the history of Lame duck sessions simply do not support the claim. The only other time something like this happened was in 1980 when like this year, the Democrats lost total control over the government.
When Bush was president, democrats frequently objected to being called unpatriotic, for opposing Bush. Now it is true that if you search the internet, you can find someone who has said just about anything about any public figure. But that some blogger somewhere called Democrats unpatriotic , is not quite the same thing as Bush or other Republican elected officials doing it, and, as Fred Barnes pointed out:
nobody called Kennedy or any other Democrat unpatriotic. Bush didn’t. Senate Republicans didn’t… In this and every other case in which Democrats claim to have been smeared as unpatriotic, the facts don’t bear them out. Bush has never used the words “Democrat” and “unpatriotic” in the same sentence or in nearby sentences. In fact, he’s never uttered the word “unpatriotic” in public in any context.
But on the Democrat side you do not have to go to obscure bloggers to find such rhetoric. Nancy Pelosi, called the Republicans “unpatriotic” at a news conference in 2008. She did the same thing in before, and is not the only Democrat to do so.
This extends to other areas as well. The transition from President Clinton to President Bush was very difficult, not just because of a lack of cooperation from the outgoing administration, but because of petty partisanship of those in the Clinton administration. Thought downplayed by the Bush administration, a later GAO report confirmed among other things that the W key was remove from many White House Keyboards and anti-bush graffiti was left in the white house. The total Cost of the damages was over $13,000. So can the same be said of the recent transition from Bush to Obama? No. In fact just the opposite, this transition was called “among the smoothest of U.S. presidential transitions.”
The same can be said of elections. When Republicans loose by a close margin, they generally accept their loss. Democrats, on the other hand often contest demanding recounts, often questionable until they can get one that gives them a victory. In 1960, Nixon loss a very close election which many historians now believe was stolen from him in Texas and Chicago. While many at the time urged him to contest, he actively sought to suppress any effort at questioning the election because he did not believe it would be good for the country. Gore’s actions following the elections in 2000 suggest Nixon was correct.
Also in 2000 Republican John Ashcroft lost a narrow senate race. Despite claims of fraud, Ashcroft accepted defeat. On the other hand in Washington State 2004 Republican Dino Rossi was declared the winner by a narrow margin. The Democrat, Christina Gregoire demand recounts the election went to the courts. The first recount still had Rossi leading, so a third manual recount was done among much controversy over ballots, particularly some newly discovered ones. This recount gave Gregoire the Democrat the lead, and she became Governor. Much the same this happen in Senatorial election in 2008 in Minnesota, where on election night the republican won, and after a lot of questionable recounts, including precincts that were somehow reporting more votes cast then voters who had voted the Democrat again won.
Even when both side do it, the standards by which they are judged is vastly different. What all politicians do have in common is that they all say dumb things from time to time and have bad interviews. When Republicans such as Dan Quayle, George Bush, or a Sarah Palin do it, it is taken as determinative and proof that they are an idiots. The quotes are played over and over. When Democrats do it, such as Obama saying he had been in 57 states, it is written off as a non-consequential mistake.
In another area, consider the reaction to conduct of Mark Foley. When it was discovered that he had sent sexually explicit emails and instant messages to former congressional page, he was immediately asked to resign, and the ensuing scandal became a major issue in the 2006 congressional elections. In an odd quirk of timing, in the midst of the Foley scandal Congress Gerry Studds passed away. In a New York Time obituary, he was lauded as “a role model.” Yet, in contrast to Foley, Studds did not just send sexually explicit messages to former pages, he had a sexual relationship with a then current page. Did he like Foley resign? No, he went on to be reelected and was eventually lauded as a role model.
In area after area, the simple facts are that they don’t just all do it. Even in areas where they do, the evidence is that there is a clear double standard. When Republicans do misbehave they are condemned, and rightly so. But when Democrats do the same or in some cases even worse, their actions are excused by point to Republican behavior, real or imagined.
