Category Archives: Health Care
According to Larry Ball, a retired Presbyterian (PCA) minister in Florida, Christian Reconstructionism, or dominionism, is thriving, poised to make a comeback as “America continues to decline, and as the Church continues to be unable to speak to the issues of our culture.” I’ve interacted with Ball’s arguments before, you may recall. After the Supreme Court upheld the Affordable Care Act Ball complained that Christian pastors weren’t doing their job of preaching against it. As he put it, “The only answer to the modern political debate on health care is a return to biblical law.”
By ‘answer’ Ball seems to mean that the government should remove itself from regulating or overseeing health care provision and that it should leave the task of providing for the poor exclusively to the church. As he puts it, the problem is that “The State has become their [churches'] partners in the ministry of mercy.”
As I pointed out in my interaction with Ball a few months ago, it is odd to hear a Presbyterian pastors speak so confidently about the implications of biblical law for contemporary politics when his assumptions are directly contrary to those of prominent reformers like Martin Luther, John Calvin, and those who so admired what they accomplished in their own churches and cities. Calvin, who believed it was the state’s obligation to enforce both tables of the Ten Commandments, also argued that it was the state’s responsibility to establish hospitals and provide funds for the care of the poor, not to mention to pay the salaries of ministers and establish schools for the training of future pastors. For Calvin what Ball describes as the problem with today’s pastors was precisely the case: “The State has become their partners in the ministry of mercy.” And remember, most Reformed leaders in the 16th Century looked to Calvin’s Geneva as the great example of a godly society (including, most famously, the father of Presbyterianism, John Knox).
Even today, of course, it is by no means clear that most Christians agree with Ball’s understanding of the teaching of Scripture. Not to mention Christians living outside of the United States, within this country most Hispanic Christians, African American Christians, and even the bishops of the Roman Catholic Church, support further government involvement in health care (and certainly support government provision for the poor). Of course, they might all be wrong. The question is whether or not they are wrong because the Bible says so.
In his newer article Ball suggests that many people are disillusioned because of the reelection of President Obama but points out that Christians “must tell them that there is purpose and hope in Christ, even on this earth.” The kingdom will still come on earth as it is in heaven; Christians will still take political dominion, before Christ’s return.
It’s worth paying attention to how Ball makes use of the various motifs in Scripture about conquest and suffering. He parodies Christians who take seriously Jesus’ (and the apostles’) repeated exhortations to believers to expect suffering and to embrace it with joy and hope, storing up treasures in heaven as they conform to the image of their Lord in this age:
There is no hope in the Christian faith, except as a way to get to heaven. Our only hope on this earth is the joy of suffering persecution, which, if we are honest, we are wont to do. Forget about what our grandchildren will have to face. Just get me out of here as quickly as possible.
In place of the New Testament’s driving motif of life under the cross in conformity to the example of Christ Ball points the church to the example of Israel on the eve of its invasion of Canaan and genocide of the Canaanites:
The modern Church reminds me of the ten spies who reported to Moses that taking the Promised Land was just impossible. Let’s just be real and practical here – right? The enemy is just too big and too powerful. They are like giants and we are like grasshoppers. Anyone who speaks of victory is just a dreamer….
What we need is revival in the pulpit and a message of hope. Joshua and Caleb’s message to Moses was basically that we are not afraid of them, but they are afraid of us. The enemy has heard about the great things God has done for us, and their hearts have melted in fear. We have the Living God on our side. “If God be for us, who can be against us?” (Romans 8:31).
I’m not sure if Ball thinks we’re supposed to imitate Israel’s commands uncompromisingly to kill their enemies or to put to death those who commit thirty odd religious and moral crimes. Given his constant emphasis on biblical law it’s not clear to me how we can assume otherwise. If Ball doesn’t speak for all Reconstructionists here I’d be happy to be corrected. But note how Ball talks about our enemies being afraid of us as he urges us to take dominion in God’s name. He invokes Romans 8:31 oddly here, but note what in context that passage actually says:
Who shall separate us from the love of Christ? Shall tribulation, or distress, or persecution, or famine, or nakedness, or danger, or sword?As it is written,
“For your sake we are being killed all the day long;
we are regarded as sheep to be slaughtered.”
No, in all these things we are more than conquerors through him who loved us.
In all these things. What things? Evidently tribulation, distress, persecution, famine, nakedness, danger and sword. Paul doesn’t tell us that if we endure all of this we will conquer and take dominion. He promises that in these things we are conquerors already. Like the lamb who was slain we are conquerors in our very suffering witness (Revelation). By conforming ourselves to Christ’s image we testify to the fact that we have all things in him and are waiting for his return to set all things right (here on earth as well as in heaven).
For the record, I’ll be much more hopeful about my children’s future if the Christian Reconstructionists do not take dominion over this country, and I suspect the same is true for most Christians. America is by no means the kingdom of God (who ever said it would be, except perhaps the Reconstructionists or other social gospelers) but I would not want to live in any other place or time. God has blessed us immeasurably and it is by no means evident to me that America is in decline (just remember Jimmy Carter’s famous speech; he thought we were in decline too). With that in view I’ll take Paul’s approach to civil government as a model rather than Caleb and Joshua’s attitude toward the Canaanites.
I urge that supplications, prayers, intercessions, and thanksgivings be made for all people, for kings and all who are in high positions, that we may lead a peaceful and quiet life, godly and dignified in every way. (1 Timothy 2:1-2)
Yesterday I had the privilege to attend a lecture by President Jimmy Carter on religion, ethics and public health at Emory University. President Carter is a very devout man and his rise to the White House in 1976 has generally been interpreted as the moment when Evangelicalism emerged as a force in American politics. Of course, Evangelicals quickly became disillusioned with the one they thought was their man. In 1980 they turned out in droves for his opponent Ronald Reagan. From Carter’s lecture yesterday you can get a pretty good sense why they did so. Here is my report, published by the Institute on Religion and Democracy:
There is no denying that President Jimmy Carter has spent the years following his presidency admirably. A vocal advocate for human rights who is not afraid to criticize the foreign policy or military efforts of his heirs in the White House – whether Republican or Democrat – Carter has put his time and money where his mouth is, seeking justice and relief for the poor and the sick around the globe. Thanks in large part to his work through the Carter Center the world is on the verge of eradicating Guinea Worm Disease (it would be only the second disease to be completely eradicated, the first being small pox).
In a lecture sponsored by United Methodist affiliated Emory University’s Center for Ethics, Religion, and Public Health President Carter spoke about his service in the cause of health care and disease prevention. From his boyhood in Plains, Georgia, when Carter’s mother was a nurse who worked so hard her son hardly saw her, to the initiatives he pursued as the Governor of Georgia and in the White House, Carter has acted on the premise that a modicum of health care is a basic human right.
That effort did not stop with Carter’s defeat by Ronald Reagan in the 1980 presidential election. In 1982 the former president founded the Carter Center, an institution devoted to promoting peace and conflict resolution around the globe. The Carter Center has spent enormous resources seeking to help solve problems that are not being addressed by other institutions, such as the lack of basic health awareness in poor parts of the world. Efforts to eradicate Guinea Worm Disease are a case in point. Carter said his team has been to every single village in Africa where people are suffering from the disease, teaching and instructing tribes that are largely illiterate and for whom the necessary preventative steps often clash with religious values.
Read the rest here.
In his classic defense of free market economics, The Road to Serfdom, F. A. Hayek explains why the expansion of government control over a complex society inevitably shifts power from representative democratic assemblies to boards or bodies of technocratic elites. Democratic assemblies are designed to operate, within limits, on the principle of majority rule. Yet majorities in large bodies can only be effectively forged on the basis of general principles or laws; they are impossible to maintain in the context of the management of a complicated society or economy.
Why? On any given issue requiring management there is an infinite variation of possible policies, each suiting the needs or interests of different parties. Inevitably a representative assembly does not divide merely into two general segments, each seeking to gain the majority against another, but into innumerable factions. The result, as Americans witness constantly in their own government, is gridlock. And the solution to gridlock is the assigning of the particulars of legislation to technocratic elites (i.e., lobbyists and lawyers) who design a policy that will be enforced by another body of technocratic elites (i.e., bureaucrats). As Hayek puts it,
The inability of democratic assemblies to carry out what seems to be a clear mandate of the people will inevitably cause dissatisfaction with democratic institutions… The conviction grows that if efficient planning is to be done, the direction must be ‘taken out of politics’ and placed in the hands of experts – permanent officials or independent autonomous bodies…. ‘It is common ground that the present parliamentary machine is quite unsuited to pass rapidly a great body of complicated legislation.’ (104).
Case in point: Obamacare. The average elected representative in Congress had very little influence over the particulars of the policy; most probably didn’t even know the details of what they were voting for or against. And yet the problem is not with President Obama and the Democratic Party. The same tendency is observable in Republican legislation like President Bush’s signature Medicare Prescription Drug legislation. Any piece of legislation seeking to expand federal control or management of something as complicated as health care or the economy requires the rule of experts.
One need not be a libertarian to accept Hayek’s basic insight on this point. And of course, it is by no means clear what Hayek’s alternative would look like in practice, particularly in a country committed to federalism like the United States. What is appropriate for a body of elected representatives at the local or state level is not necessarily the same as what is appropriate at the federal level.
But Hayek’s perspective is at least worth pondering. From his perspective the unpopularity of Congress today is less the result of the tendency of power to corrupt, or the irresistible need for the politician to do what will get her or him reelected, than it is the effect of the American people having given Congress a mandate it cannot possibly fulfill.
The fault is neither with the individual representatives nor with parliamentary institutions as such but with the contradiction inherent in the task with which they are charged. They are not asked to act where they can agree, but to produce agreement on everything – the whole direction of the resources of the nation. For such a task the system of majority decision is, however, not suited… There is no reason why there should be a majority in favor of any one of the different possible courses of positive action if their number is legion (105).
The delegation of particular technical tasks to separate bodies, while a regular feature, is yet only the first step in the process whereby a democracy which embarks on planning progressively relinquishes its powers… The belief is becoming more and more widespread that, if things are to get done, the responsible authorities must be freed from the fetters of democratic procedure (107-108).
Alexis de Tocqueville warned that when democracy went down this road it would spawn a massive interest group of government officials, bureaucrats, and associated elites whose interest would gradually diverge from that of the people. Tocqueville would not be surprised by the contemporary political battles between public unions and populist reforming governors such as that which took place in Wisconsin this past year. Yet Joel Kotkin points out that both President Obama and Governor Romney represent a set of elites seeking to manage the country in one way or another.
The middle class, we’re frequently told, decides elections. But the 2012 race has in many ways been a contest between two elites, with the plutocratic corporate class lining up behind Mitt Romney to try and reclaim its position on top of the pile from an ascendant new group—made up of the leaders of social and traditional media, the upper bureaucracy and the academy—that’s bet big on Barack Obama.
Kotkin interprets the Tea Party as a populist reaction to the increasingly authoritarian and technocratic character of American government. Yet he by no means conflates a President Romney with the Tea Party.
Of course, Romney himself is the very opposite of a populist. As president, he would offer four years of technocratic, corporate power. Yet at the same time, a Romney administration—contrary to the claims of Democratic operatives and at times also the mainstream media—would not embrace the savage worldview of Pat Buchanan, Sara Palin, or even Rick Santorum. It would be establishmentarian in a “sensible shoes” kind of way.
So what is the choice facing American voters? Hayek would tell us that we have given our democracy an impossible mandate: the management of the most complicated economy in the world. In this case we might want to moderate our hopes for what any politician can achieve. After all, when we go to the ballot box we are not usually voting for particular rules or policies. For most of us we are simply choosing which party, with all of its technocratic expertise, will do the least damage. Good luck with that.
[Note: I am not as cynical about the upcoming election (or some of the issues at stake) as this last paragraph may suggest. I am simply trying to put some things in perspective. Consider it a nod to the book of Ecclesiastes.]
There are many conservative Christians who think that if pastors faithfully preached the Bible they would demonstrate from Scripture that government should not tax people for the purpose of providing for the needs of the poor, and that government should not insure health care for those same poor. The argument here is not that solid political philosophy or even wisdom lead to these conclusions; it is that Scripture authoritatively teaches them.
It is helpful to pay attention to the reality that many orthodox Christian denominations (including most notably the Roman Catholic Church) teach precisely the opposite from Scripture, and it is even more helpful to note that leading Christian theologians throughout the ages have held quite different views of the nature of property and liberty than do many contemporary Christians. That does not mean contemporary Christian conservatives are wrong economically or politically, but it may suggest that their views do not exactly derive from Scripture.
Given that many of these Evangelicals are Reformed, it is worth considering what Calvin taught was the obligation of government towards the poor.
Calvin believed that the civil magistrate is appointed as God’s servant to use the sword to ensure that the poor receive at least a modicum of equity. In fact, because they receive their authority from God magistrates must imitate God by providing special protection for the poor above and beyond that of their other subjects (see Calvin’s commentary on Isaiah 10:1). Writing on Psalm 72, which he views in part as a description of “the end and fruit of a righteous government,” Calvin notes that “God takes a more special care of the poor than of others, since they are most exposed to injuries and violence… David, therefore, particularly mentions that the king will be the defender of those who can only be safe under the protection of the magistrate” (Comm. Ps 72:4).
Commenting on Psalm 82, a psalm of prophetic judgment on unjust rulers, Calvin writes that “a just and well-regulated government will be distinguished for maintaining the rights of the poor and afflicted.” The reason for this is that it is the poor and afflicted who tend to need the magistrate, not those who are rich and prosperous. Calvin suggests that if magistrates grasped this truth, “that they are appointed to be the guardians of the poor, and that a special part of this duty lies in resisting the wrongs which are done to them, and in repressing all unrighteous violence, perfect righteousness would become triumphant through the whole world” (Comm. Ps 82:1-4).
In a sermon on 2 Samuel 1:21-27 Calvin declared that although it is very rare, “it is praiseworthy for a good prince to relieve his subjects’ poverty.” Indeed, it should be considered to be the virtue of a king or prince if he keeps his subjects in comfort and promotes their wealth. “Then they can grow richer as they run their households, and each one can have enough for himself and his descendents. When, I say, a prince maintains these conditions, he will be valued far more highly.”
In another sermon (on 2 Samuel 5:1-5 Calvin compared a good king to a good shepherd. “Now two things are required of a shepherd. The first is that he provide his animals with good pasture, and then that he keep them safe from all thieves and wolves and trouble. Now that I say is what princes must do. If they think that they will render an account to God for the charge that is committed to them, they must see to it that their subjects live in peace and that they are maintained; and then, in the second place, that they defend them against all troubles.
When it comes to the details of how magistrates should succor the poor, of course, Calvin gives few details (he did not preach political sermons per say), but the details he does give are significant. He indicates at one point that magistrates should provide for the poor by building poor-houses, hospitals, and even schools (Comm. Is 49:23). He is harshly critical of forms of usury in which the poor are taken advantage of, and yet he insists that the alternative to usury is not refusing to lend to the poor, but ensuring that the needs of the poor are met (Serm. Deut 23:18-20). In his sermon on Deuteronomy 15:11-15 he defended a prohibition of begging for the sake of “common order and honesty” and on the basis of “nature”, but then insisted that such a prohibition is only just if the government ensures that the poor do not need to beg. Part of “keep[ing] order and policy,” he suggests, is establishing “hospitals … for such needs.”
From this it is evident that Calvin did not view the generous acts of individuals or even the organized operations of groups as sufficient for meeting the needs of the poor. For the civil government to enforce a ban on begging it was responsible to ensure that poor relief was sufficiently funded, organized, and regulated. Calvin’s judgments therefore suggest that he believed the state did have a role in providing for the poor (or at least in ensuring their provision), and he grounded that belief in Scripture.
Of course, Calvin may have been wrong. But it is worth remembering that if there was anything he was absolutely committed to in his preaching and in his teaching it was only to declare what Scripture itself declares. Calvin was rigidly careful about this. To be sure, nothing Calvin wrote or said suggests anything one way or another about the wisdom of a particular program or policy in our own day and age. But Calvin’s words do suggest that if we are going to declare the teaching of Scripture regarding government’s obligation for the poor we had better be sure that we are not spouting off our own political or economic opinions. And if we actually pay attention to preachers who do faithfully teach Scripture to us we might discover that it is our own views that are out of line with the will of God.
In an article in the Aquila Report today Larry Ball argues that pastors need to start preaching about politics again, specifically in view of the Supreme Court’s refusal to overturn the Affordable Care Act, otherwise known as Obamacare. Ball suggests that Christians are entirely at a loss about how to respond to this development, both because the national slide away from the constitution has been going on for so long, and because the church no longer teaches what the Bible has to say about these matters. Ball writes,
Christians have been kept in the dark for lack of good teaching. In essence the Constitution today is null and void. The only answer to the modern political debate on health care is a return to biblical law.
Ball’s sentiment is not far from that of other conservative Christian culture warriors in this respect. As one person suggested in a comment on this blog, we should not be so quick to dismiss the importance of fighting culture wars. After all, we are called to fight the principalities and powers of darkness with the Word of God. Or as a more extreme culture warrior argued relative to the Obama administration’s immigration policy: “We are living under a Criminal State. Morally speaking, we do not owe it obedience.”
Ball goes on,
Conservative politicians, and even the Church, are unable to apply biblical law to the political issues of the day. We still seem to believe that the separation of Church and State voids the application of biblical law in the public square.
It should not be surprising that many churches support Obamacare and the confiscation of wealth for redistribution. The State has become their partners in the ministry of mercy. Other churches are silent and have nothing to say except a few prayers on Sunday Morning for the civil magistrate. The sermons that most preachers preach are what I call ‘safe’. They deal with the legitimate and orthodox issues of the heart, but they never cross the boundaries into the realm of the duties and limitations of the civil magistrate. Most evangelical preachers never call the civil magistrate to obey the law of God.
This is a striking argument, not because it assumes that preachers should have something to say about government, but because it assumes, virtually without argument, that “biblical law” would call for the overthrow of the Affordable Care Act on the basis that it involves “the confiscation of wealth for redistribution.” If only preachers preached what “biblical law” had to say on this matter, Ball argues, we would all know that Obamacare is unconstitutional.
I have three basic problems with this line of thinking. First, why is it that political conservatives are so confident that the Bible gives them a platform from which to denounce government taxation policy? If the Bible says anything about the relationship between Christians and the state, it is precisely that believers should not imagine Christ’s kingdom to say anything that would remove Caesar’s authority over money and taxation. Wasn’t it Jesus himself who asked the Jews whose inscription was on their money? And whose inscription is on those dollars that fill the wallets, bank accounts, and pension funds of Americans?
Oh, but you might say, legitimate taxation is different from “the confiscation of wealth for redistribution.” But how so? Is not the essence of tax policy the confiscation of wealth for redistribution to others, whether those others be the military, the courts, the police, or whoever? And does Scripture really teach us that certain forms of redistribution are legitimate, whereas others are not? We should not be so sure. Remember, fellow Christians, whose inscription is on the money. Remember what Jesus said about it. Don’t use Christ’s pulpit to advance your own political agenda.
Second, why does Ball assume that “biblical law” somehow guides our interpretation of the Constitution? On the one hand, it is entirely unclear to me what he means by “biblical law.” Is he referring to the Torah? Are we supposed to enact the 30 cases of capital punishment, including death for sabbath breaking, disobedience to parents, and false religion? Should we be canceling all debts every few years, and making sure that all American families can have a plot of land that is ultimately inalienable from their family holdings? Should the government be requiring businesses and farms to leave a certain amount of work for those who are poor, so that they can provide a living for themselves?
On the other hand, I do not understand how anything found in Scripture tells us what the Constitution says about tax policy. The whole point of the 16th Amendment of the Constitution was to give the government the right to tax the income of the very rich so that that wealth could be redistributed to the rest of the country. The Constitution does not place significant restrictions on the government’s power to tax. Nor does Scripture.
Third, if the church does throw its weight around in the arena of health care policy, will the result really be what Ball wants? The U.S. Conference of Catholic Bishops has made it quite clear that apart from certain provisions relating to abortion and religious liberty, it stands fully behind Obamacare because of the biblical mandate that calls government to ensure that the poor receive basic provision and health care. And here the bishops, a bastion of pro-life conservative Christianity, are quite consistent with what many of the most conservative evangelical African American denominations and churches in this country have been advocating for years.
They are also not entirely without precedent in a figure like John Calvin, who freely spoke of the government’s obligation to ensure that the basic needs (he called them rights) of the poor are met, both in terms of basic provision and in terms of basic health care. It was Calvin, Ball may not realize, who argued that the diaconate of the church should work closely with the civil government in this area.
To be sure, I am not remotely defending Obamacare. I think it is bad law, and I hope it is replaced with better law. It also contains certain provisions that Christians should oppose, in line with what the Catholic bishops have said. But when it comes to health care policy the fact is that good Christians will disagree. The legislators, president, and judges who have made Obamacare the law of the United States are not the principalities and powers of darkness. They are the authorities (or ministers) ordained by God to govern this land, to whom we owe obedience, love, and service.
And that, ultimately, is the point that really gets lost here. Christ told us how we are to “wrestle against … the rulers, against the authorities, against the cosmic powers over this present darkness, against the spiritual forces of evil in the heavenly places.” It is by walking in faith, hope, and love in obedience to the word of God, exemplifying the sacrificial service of Christ toward our neighbors in all that we do, and so witnessing in word and deed to the gospel. To be sure, that does not mean we compromise our convictions about what is best for this country, nor does it mean that we submit to government when it commands us to disobey God. But it does suggest that we do these things in a spirit of love and humility, not in the spirit of culture war.
Most importantly, we should not be so quick to assume the voice of Jesus when disputing the wisdom or prudence of health care policy. Jesus told us whose money and whose authority are at stake here. Preaching against the Affordable Care Act and its tax policy does not proclaim Christ’s lordship; on the contrary, it claims Christ’s authority for what is really the opinion of man. We may worry that government has taken upon itself a messianic complex, but let us beware that we do not do precisely the same thing.
There are now a bejillion articles on the Internet examining yesterday’s Supreme Court decision and trying to figure out the implications of it all. There is no way one person can keep up with it all, and for many people it is all somewhat bewildering. Many conservatives in particular wonder how in the world it is possible for the Roberts-led decision to have been good for this country if it upheld the constitutionality of the Affordable Care Act. Some liberals think that the conservatives who try to find silver lining in the case are giving nothing more than a desperate attempt to come to terms with grief.
What’s really going on?
There are many people, on both the right and the left who think that every significant issue that faces this country should be viewed through the zero sum lens of the culture wars. If Obamacare survives, one side wins, and if it falls, the other side wins. Take no prisoners. Give up no ground. Everything is at stake. All compromise is bad. People like this don’t tend to care about the long term ability of our political institutions to handle the stress of culture war. To them the concern of a conservative chief justice to ensure the credibility of the Supreme Court in a nation that includes both liberals and conservatives is nothing short of betrayal.
More sober minds, whether or not they agree with this particular decision, look at the long term implications of the decision in all of its nitty-gritty detail, both in terms of what it means for conservative constitutional theory and the long term viability of the great experiment that we call the United States of America.
Taking this approach, Walter Russell Mead writes,
The decision should also remind people that despite the increasingly partisan nature of the process by which justices are appointed and confirmed, the court is not a partisan organization. Chief Justice Roberts and Associate Justice Kennedy both surprised much of the world with their votes; whatever one thinks of the conclusions they reach it seems reasonably clear that all nine justices vote with their legal convictions rather than their partisan interests.
Many who hate Obamacare will curse the Court and many who like the law will bless it, but the Court is functioning as a Court of law and not a political tribunal. That the Chief Justice appointed by George W. Bush cast the deciding vote to save President Obama’s most important legislative achievement is a clear signal that partisanship in this country goes only so far.
In contrast, Mead notes, look at the inability of Europe to solve its problems through the ordinary structures of government. I would add that in many countries of the world a dispute of this magnitude would lead to national collapse or even war. Mead writes,
I don’t think the health care policy we’ve adopted is a particularly good one, but at least our institutions more or less worked. The President made a proposal, the Congress then in office debated the proposal and, after much agony and pork peddling, passed a law. The law was and is controversial; it is being relitigated in two forums. Judicially, it moved through the Court system and received a full and thorough review, and a definitive decision has been pronounced. This is the law of the land, and it will and should be enforced until changed.
Like me, Mead thinks Jay Cost’s initial analysis of the decision contains great wisdom.
It’s going to take some time for the dust to settle, but the most interesting early take in my view comes from Jay Cost, who wrote in a tweet no less, “It is about scoring your side a huge legal victory while quieting the heat of opponents; that’s ONLY way to effect enduring change.” Jay’s theory is that the limit on the powers of Congress under the commerce clause will matter more for America’s future development than Obamacare — a law whose weak financial base ensures it will have to be revisited sooner rather than later. That’s why he compares the decision to the famous Marbury vs Madison when the astute John Marshall secured Jeffersonian acquiescence for the Court’s power to nullify Congressional acts by making the overturn of a law the basis for a decision that, in practical terms, got the results Jefferson wanted.
Ah, the long term. It is the actual argument that matters, not just the outcome. If you want to hear more about what exactly happened with Marbury vs Madison check out Sean Trende’s analysis at RealClearPolitics.
Trende notes that in this ruling the Federalist Society, which represents the conservative and essentially strict constructionist view of the Constitution, got virtually all that it wanted.
But judicial conservatives who are not just concerned about the outcome got more than they could have reasonably hoped for. Doctrinally speaking, this case will likely be remembered as a watershed decision for conservatives.
Five justices just signaled to lower courts that, but for the unique taxation power argument, they were prepared to rule that a major act of Congress that plainly touched upon economic activity exceeded Congress’ commerce powers…
The court just constricted its Commerce Clause jurisprudence; if liberal commentators are correct, they did so by a lot. It doesn’t matter today, but 10 years from now, it will probably be a different story…
Seven justices just agreed to real limits on Congress’ ability to attach strings to legislation. This is significant. Until today, these limits were hypothetical, and it was believed that Congress could, for example, remove all Medicaid funding as a punishment for a state’s refusal to comply with the Medicaid expansion. I did not expect the court to rule the way it did here, much less to do so by a 7-2 vote.
What’s more, Trende points out, Roberts achieved much of this even though it was in part irrelevant to the case at hand.
One of the interesting features of Marburyis that the Court didn’t have to decide that Marbury was entitled to his commission. Indeed, it probably should have decided the jurisdictional issue first, then left the remaining issues for the Courts to decide upon refiling. But Marshall wanted to get the most favorable for Federalists that he could, while still maintaining the Court’s credibility.
Similarly, Roberts actually didn’t have to reach the commerce clause/necessary and proper issues. Having decided the tax issue, he actually probably could have stopped there. That he didn’t suggests that he wanted to make sure that, even in defeat, there were five clear votes for the conservatives’ view of the commerce clause and necessary and proper clause.
Of course, for those who think that there is only one Christian view of health care and that the Supreme Court should have known enough about the Bible to detect that view and therefore throw out Obamacare, none of this matters at all. Who cares about procedures? Who cares about maintaining national institutions that can resolve disputes between liberals and conservatives, even if not always in favor of conservatives? Who cares about arcane matters like the commerce clause?
But as the conservative Matthew J. Franck writes as a guest on the Washington Post blog, there is no Christian view of health care that can decisively mediate between liberals and conservatives on how to solve the health care problem. In fact, there may have been just as many Christians praying that the law would be upheld as were praying that it would be overturned. As Franck puts it,
is there a single “Christian view” on health-care policy—or even a single Catholic view?
Not exactly. Like everyone else, those who take a self-consciously Christian perspective on health care fall out along familiar liberal-vs.-conservative lines. Some will claim that the responsibility for “the least of these” necessarily falls chiefly on government, because government really is all of us. The responsibility being everyone’s, the response must be collective, and what is government but the active arm of the whole society? Therefore, according to this view, the Christian love for neighbor is frustrated wherever the government is held back from doing all it can do, in mercy and charity.
Others will point out that this obscures the extent to which “everyone’s responsibility” means each individual’s. Human needs are personal, one by one, and the works of charity and mercy must be equally personal, calling forth the virtues of voluntary action. The state is by nature impersonal (viewed in the right light, this is actually one of its virtues); it cannot love anyone, and is not a reliable channel for the love of neighbors for one another. On the way from Neighbor A to Neighbor B, if the love has to be transmitted through the state, what might have begun in charity and mercy will wind up distorted by coercion, inattention to the human element, and stunting of the free actions of persons.
The big picture in all of this is that our system is working. You may not like the results. I certainly would have hoped things worked out a little bit differently. But the fact remains that the institutions of American government are successfully channeling the process of America self-government in a way that is peaceable and procedurally just. Nothing is set in stone. If you don’t like Obamacare, there is still a fairly decent chance that it will be overturned. But the way in which that may happen will be the right way, through the political process. All of this is reflective of the fact that our country, the great experiment of the founding fathers, is working.
The Supreme Court decision on the health care law just announced is a remarkable decision. No one expected conservative Chief Justice Roberts to cast the key vote that upheld the law, with sharp opposition from moderate Justice Kennedy. No one thought the decision would revolve around the government’s power to tax. No one thought that a ruling upholding the health care law would create a big electoral headache for President Obama in his campaign for reelection. Yet all of this has now happened.
Jay Cost provides a sharp analysis over at the Weekly Standard:
First, the Roberts Court put real limits on what the government can and cannot do. For starters, it restricted the limits of the Commerce Clause, which does not give the government the power to create activity for the purpose of regulating it. This is a huge victory for those of us who believe that the Constitution is a document which offers a limited grant of power.
I would actually argue that this was the most important issue at stake in the case, far more important in the long run than Obamacare itself. If the administration had won on its interpretation of the commerce clause, the idea of the Constitution as a limit on federal power would have been dead in the water. The commerce clause would have truly have become the Trojan Horse for anything the government wants to do. Thankfully, the constitution remains meaningful.
Cost also notes a second way in which the ruling upholds the Constitution.
Second, the Roberts Court also threw out a portion of the Medicaid expansion. States have the option of withdrawing from the program without risk of losing their funds. This is another major victory for conservatives who cherish our system of dual sovereignty. This was also a big policy win for conservatives; the Medicaid expansion was a major way the Democrats hid the true cost of the bill, by shifting costs to the states, but they no longer can do this.
In other words, the ruling is a big win for states’ rights, arguably the second most important issue in the case. States can and will defy the Obama administration on this issue. Federalism is preserved.
But, you may say, what about the power to tax? Does this not simply expand government power by placing it all in the power to tax, rather than in the commerce clause? No, it does not, because the government has always had radical power to tax. Yet this is not a great threat to American liberty, because as we have seen in the last decade and a half, Americans are very touchy about taxation. It is very difficult to raise taxes, even for a Democratic president who controls both houses of Congress. That is why when Obama campaigned for his health care law he was adamant that the penalty attached to the individual mandate was categorically not a tax.
What the court has done, then, was to tell Obama that he was wrong, and that the penalty is a tax. In other words, the centerpiece of Obama’s administration amounts to a tax increase that Obama himself vowed not to support. Note carefully, then, what this means for the future. Had Obama admitted that the health care law contained a very important tax, it probably would not have passed. The bill only passed because it was based on a false assumption. Now in the upcoming election the country will essentially vote in a referendum on whether or not it wants that tax increase. And if history is any guide, that does not bode well for Obama. Americans don’t generally vote to raise their own taxes.
As Cost polemically describes the situation:
The Democrats were at pains not to call this a tax because it is inherently regressive: the wealthy overwhelmingly have health insurance so have no fear of the mandate. But now that it is legally a tax, Republicans can and will declare that Obama has slapped the single biggest tax on the middle class in history, after promising not to do that.
To be sure, it is by no means sure that the Republicans will win in November, and even if they do, it is by no means clear that they will successfully destroy Obamacare. I am not trying to portray this ruling as a great victory for conservatives.
But I do want to suggest that we keep all of this in perspective. The ruling is a lot more complicated than the headlines suggest. The winners and losers are not as obvious as immediately meets the eye. And the most important thing in all of this – the integrity of the constitution – was upheld.
New York City plans to enact a far-reaching ban on the sale of large sodas and other sugary drinks at restaurants, movie theaters and street carts, in the most ambitious effort yet by the Bloomberg administration to combat rising obesity.
The proposed ban would affect virtually the entire menu of popular sugary drinks found in delis, fast-food franchises and even sports arenas, from energy drinks to pre-sweetened iced teas. The sale of any cup or bottle of sweetened drink larger than 16 fluid ounces — about the size of a medium coffee, and smaller than a common soda bottle — would be prohibited under the first-in-the-nation plan, which could take effect as soon as next March.
Welcome to the nanny state. Have whatever kind of marriage you want, destroy your fellow citizen’s marriage in any way you find amusing, kill the child within your womb if it strikes your fancy, but please don’t purchase a soda of more than 16 fluid ounces. For the same of the common good. For the good of the commonwealth.
According to the old proverb the need for many laws is directly proportional to the lack of virtue among the people. The view of the founding fathers that a government of freedom by the people depends on the virtue of the citizens is so well-known as to be a cliche.
But really, what do you do here? After all, we have a serious problem.
In New York City, where more than half of adults are obese or overweight, Dr. Thomas Farley, the health commissioner, blames sweetened drinks for up to half of the increase in city obesity rates over the last 30 years.
Don’t forget that the trend in this country is toward government-subsidized health care. I don’t know the statistics for New York, but I suspect hundreds of thousands of the city’s citizens are already fully insured by Medicaid. And New York, unlike most cities, likes to do things. At least so says Mayor Bloomberg:
“New York City is not about wringing your hands; it’s about doing something,” he said. “I think that’s what the public wants the mayor to do.”
So is this really what Americans want? Do we all agree that government should not legislate morality in any way, shape or form, let alone try to promote virtue within the populace? Do we prefer government to limit our choices rather than to be forced to choose well? Should government pay for all the health costs that arise when we don’t make those choices wisely? If so, is it really so bizarre for government to tell us how to eat?
I’m really not sure how the broader public would answer these questions. But it strikes me that the real lesson of this story, in light of other high-profile controversies of the past few months, is that as Americans we are entirely confused about what government is for and what it is supposed to do. That confusion, of course, is directly related to our view of ourselves. Augustine said that those who love themselves above all use the goods of this world in a way that is fundamentally incompatible with true justice. I’m not sure what he would have thought about the American experiment of self-government. But I doubt he would have been entirely surprised at some of its silliness.