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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Saturday, June 30, 2012

The Missing Constitution?

Those online ignore the message here freely, but as Glenn Greenwald noted once, sometimes the person you are responding to is not really the point. They voice something that others are thinking too. And, of course, it feels good to hear yourself talk and school someone. Oh, and you know, maybe each side will learn something.
Justice Ginsburg’s Constitution is the Constitution of New Deal Democrats. Article I gives the federal government the power to resolve any national problem, particularly national problems that individual states cannot resolve on their own. The number of persons without health insurance is a national problem that states cannot resolve on their own. Since the individual mandate and extension of Medicaid are not utterly idiotic solutions (the New Deal standard) to that problem, they are constitutional.
Roberts uses the Constitution of the Republican Party while the four dissenters (it is curious that they labeled their opinion a dissent when in effect they joined the holding on various points; it seems a bit counterproductive on precedent grounds) are Tea Party types.  This is a somewhat simplistic summary.  The ruling does not say that "any national problem" that is resolved by something not "utterly idiotic" is constitutional. This caricature falls by noting there are many constitutional provisions that limit the federal government without making it "utterly idiotic" for Congress to invade them.  And, the means here was specifically a commercial regulation. Ginsburg does not ignore the principle of "enumerated and limited" powers.  

As to Roberts, since I don't recall military commissions in Gitmo during the New Deal, the New Deal is not really a limit on federal power -- only in certain areas, apparently.  And, even in respect to non-military areas, such as abortion regulations or protections of religious liberty, Roberts will accept broad federal regulations. Even the dissent is not quite that suspicious, especially Kennedy -- I doubt he is really a "Tea Party" type in various ways, including the fact they tend to be socially conservative.  And, though it might be true to the others, even someone like Alito isn't overly pure about the idea in various respects.

What might be called the Move-On or Progressive Constitution is missing from this debate entirely. ... The post-Civil War Amendments, most notably the abolition of slavery and the equal protection clause, were designed to ensure that all persons would have the rights and resources necessary to live lives as democratic citizens (or some other phrase). Persons need rights to health care in order to function as democratic citizens. Therefore, the individual mandate and expansion of health care are legitimate exercises of congressional power to enforce the rights protected by the Thirteenth and Fourteenth Amendments.
It is not as if Ginsburg et. al. are not open to this sort of thing, if given a realistic chance.  Tennesse v. Lane, e.g., was a limited win for those resisting current state immunity doctrine because it was found the due process rights of the disabled to access of the courts were being addressed. This Fourteenth Amendment right is recognized while generally speaking burdens on the disabled need only meet a rational basis test.  Ginsburg concurred separately to defend Congress' ability to broadly protect the equal justice for the disabled.  She also used equal protection of defend abortion rights, not the traditional privacy rationale alone.  She has to work within actual doctrine though.

I think it quite reasonable to say that the PPACA is necessary to protect equal protection and it has been defended various times with rhetoric that promotes that overall meme.  I myself defended it as from the beginning, though some people was totally turned off by that idea.  That is, it allows everyone (or much closer to that reality) the ability to not be denied a basic necessity because of inability to pay, conditions beyond their control and so forth.  Art. I powers can be used to promote such ends, so all the same, I wouldn't use that by itself. I think the anti-slavery connection is more of a stretch, though the desperate state of those without proper health care and disproportionate affect on certain groups does bring to mind being not quite free and a racial angle.

Two things.  First, Art. I. itself has various powers that deals with such issues.  For instance, taxation for the "general welfare" -- that is, for everyone, not for some specialized group.  Medicaid is a case in point; not defended by reference to the 14A, but as an appropriate use of the tax power in a way that advances equality.  The commerce power has similar value as clearly seen by the Civil Rights Act of 1964.  A strong exercise of such powers will protect equality and the blessings of liberty for all. 

Also, the measure is a federal one -- the 14A in particular generally concerns states.  It is true that it also references national citizenship and some argue it should be used to protect a broad vision of that term nation-wide, both in federal and state jurisdictions.  And, since there is just one national citizenship, not grades of it, it has an inherent equal protection component that applies to each citizen, not just against state action.  But, that isn't how doctrine works these days and in fact (like those who can't understand why people don't see abortion rights as a basic Thirteenth Amendment issue) not broadly seen that way.

It would be nice to have a strong left leaning voice on the Court, a latter day Thurgood Marshall, that would consistently be able to promote such views as if this was the early 1970s.  (Judge) Goodwin Liu and others might have some opportunity in the future to do so, perhaps, some of his writings recommended.  From time to time, on certain issues, we will hear it.  But, when the federal government itself did not raise such an argument, it is a bit much to expect some voice on the Court to independently bring it up.  I agree it is somewhat unfortunate and that the Roberts opinion will help to restrain the "Overton window."

Such are the continuing effects of 2000.