Supreme court debate Affodable Care Act

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Re: Supreme court debate Affodable Care Act

Postby bentheimmigrant » Sat Mar 31, 2012 7:26 pm UTC

First, the simplicity of the constitution (and it's not really, when you consider the range of powers laid out, and the open-endedness of those powers) means nothing. There is no implication to take from it.
Second, the Court ruled about 200 years ago that any powers that congress has are congress' to use to their fullest extent.
Third, the Court hasn't ruled yet so what's the point of your last part?
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Re: Supreme court debate Affodable Care Act

Postby Ghostbear » Sat Mar 31, 2012 7:28 pm UTC

Steroid wrote:And the constitution being simple shouldn't mean that we find implied powers, it should mean that government itself should be simple.

The constitution was simple so that it would able to adapt to new eras without being re-written wholesale (either directly or through amendments overriding everything else) every couple of generations. It speaks nothing towards whether the government should or should not be simple. It is clear through the inclusion of the amendment process that they did not intend for the US to forever be governed the way it was in the late 18th century. A simple document does not imply a simple outcome or result. You're just making an erroneous conclusion from the starting point of the constitution being simple.

I'm also not sure how implied powers factor into this at all. It's a power directly given to the federal government, to regulate interstate commerce. The regulation does not conflict with any of the limitations offered. This isn't an implied power at all.

Steroid wrote:Just because the free market can't achieve something at all does not imply that the government can accomplish it efficiently.

But it does imply that the government can accomplish it more efficiently than the free market, so long as the government can accomplish it at all. If society has determined that it something worth accomplishing, and the only way to do so is with government, then that makes it, by default, the most efficient way to accomplish it (since there are no alternatives).
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Re: Supreme court debate Affodable Care Act

Postby nitePhyyre » Sat Mar 31, 2012 8:02 pm UTC

Ghostbear wrote:The most convincing argument I've seen for the mandate is that everyone -- insured or not -- affects the costs of people who are insured; in essence, you're part of the market, whether you like it or not. So the mandate forces you to properly participate in something that you're part of no matter what.
With factors like supply and demand, economies of scale, etc. aren't you part of the market, whether you like it or not - for everything?

Steroid wrote:Then why have any constitutional limits at all? In fact, all limits prescribed by the constitution can be overturned by amendment, so it's really just a higher electoral standard.
In theory, it is because the founding fathers were afraid of a 'tyranny of majority'. Whether or not those worries were misplaced is still an open question.

Steroid wrote:As much as I'd like a standard of "even if everyone in the country wants it, you can't do it," that's not practical.
Steroid wrote:B) That might work if it were spoken ex cathedra or was self-evident. If there was such a clear line between a mandate for insurance and a mandate for broccoli that everyone could see where the line is and not have to argue about it, it might work, but others to come with less scruples than Paul Krugman (as hard as that is to believe) might not see it so. Everyone having insurance is good, they would say, so we can mandate it. Everyone eating their broccoli is good, so we can mandate that too.
Why would you want that?
I think there is a clear line: The fact that no one is honestly arguing for a broccoli mandate. If there ever comes a time when the people of a society think that a broccoli mandate is a good idea, who are you to tell them they are wrong?

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Things change over time. That is a good thing.
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Re: Supreme court debate Affodable Care Act

Postby Ghostbear » Sat Mar 31, 2012 8:40 pm UTC

nitePhyyre wrote:With factors like supply and demand, economies of scale, etc. aren't you part of the market, whether you like it or not - for everything?

Sure, if you want to be pedantic, yes, you're indirectly part of the market for everything. That's missing the point though, the extent to which you're stuck being part of the market for healthcare is significantly greater than it is for our "everything" case. This is where the "proximity to market" points come in. I have approximately zero proximity to the market for, say luxury yachts (since I can't afford one). You could make an argument that I'm technically part of the market for them through influencing supply and demand, but by creating no demand and using up no supply, I'm not part of it in practice.

With healthcare, however, you're a single accident away from affecting supply and demand, whether you want to or not. Someone earlier in the thread linked to an interview with Reagan's solictor general, who stated that in a 5 year period, 95% of the population will use healthcare, and in any single given year, it was 85% or 87% (or similar). You're never that far from the healthcare market. So, in practice, almost everyone is going to be part of the healthcare market in their lives. That can not be said for other markets.
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Re: Supreme court debate Affodable Care Act

Postby Steroid » Sat Mar 31, 2012 8:58 pm UTC

nitePhyyre wrote:
Steroid wrote:Then why have any constitutional limits at all? In fact, all limits prescribed by the constitution can be overturned by amendment, so it's really just a higher electoral standard.
In theory, it is because the founding fathers were afraid of a 'tyranny of majority'. Whether or not those worries were misplaced is still an open question.

I think this debate shows that they were not.

Steroid wrote:As much as I'd like a standard of "even if everyone in the country wants it, you can't do it," that's not practical.
Steroid wrote:B) That might work if it were spoken ex cathedra or was self-evident. If there was such a clear line between a mandate for insurance and a mandate for broccoli that everyone could see where the line is and not have to argue about it, it might work, but others to come with less scruples than Paul Krugman (as hard as that is to believe) might not see it so. Everyone having insurance is good, they would say, so we can mandate it. Everyone eating their broccoli is good, so we can mandate that too.
Why would you want that?
I think there is a clear line: The fact that no one is honestly arguing for a broccoli mandate. If there ever comes a time when the people of a society think that a broccoli mandate is a good idea, who are you to tell them they are wrong?

But that directly contradicts the idea of inherent individual rights. The premise of freedom is that there are rights that, no matter how many people want to take them, for no matter how long, they can't, or at least it's wrong to do so. I shouldn't have to choose between broccoli or death (though I hear Church of England is trying something similar) ever. Not now, not a hundred years from now, not until the last trump.

If that's your argument, that there are no inherent rights, fine, but make that plain. When that happens you will find rather less support than otherwise anticipated.
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Re: Supreme court debate Affodable Care Act

Postby Ghostbear » Sat Mar 31, 2012 9:05 pm UTC

Steroid wrote:I shouldn't have to choose between broccoli or death (though I hear Church of England is trying something similar) ever. Not now, not a hundred years from now, not until the last trump.

If that's your argument, that there are no inherent rights, fine, but make that plain. When that happens you will find rather less support than otherwise anticipated.

This is such a hyperbolic, disingenuous framing of the argument. There are inherent rights that are acknowledged by the constitution -- hence, the bill of rights. The individual mandate does not violate any of those rights. If you think there are inherent rights that are not enshrined in our legal framework that should be, then you should be pushing for an amendment that will add them to the list of protected rights. Not hyperbolically comparing this to "broccoli or death".
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Re: Supreme court debate Affodable Care Act

Postby Steroid » Sat Mar 31, 2012 9:14 pm UTC

Ghostbear wrote:
Steroid wrote:I shouldn't have to choose between broccoli or death (though I hear Church of England is trying something similar) ever. Not now, not a hundred years from now, not until the last trump.

If that's your argument, that there are no inherent rights, fine, but make that plain. When that happens you will find rather less support than otherwise anticipated.

This is such a hyperbolic, disingenuous framing of the argument. There are inherent rights that are acknowledged by the constitution -- hence, the bill of rights. The individual mandate does not violate any of those rights. If you think there are inherent rights that are not enshrined in our legal framework that should be, then you should be pushing for an amendment that will add them to the list of protected rights. Not hyperbolically comparing this to "broccoli or death".

The rights laid out in Amendments 1-3 are indeed acknowledged as inherent, and are useful to the individual--the right to publish a paper saying, "Fuck you," the right to own a gun, the right to tell a soldier, "Go sleep out in the rain, bitch." The rights in Amendments 4-8 are only procedural. They come into effect only when in the justice system. I don't want to exercise my right to a speedy trial, because I want to not be tried at all, having not committed a crime. 9-10 are basically the amendments you say I should be pushing for--"Everything not listed here." That should include the right to choose what I eat (and how I pay for my health care) without actually being written down as such.
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Re: Supreme court debate Affodable Care Act

Postby Telchar » Sat Mar 31, 2012 9:25 pm UTC

Steroid wrote: That should include the right to choose what I eat (and how I pay for my health care) without actually being written down as such.


Was there a passed that I missed that said you have to pay for your healthcare with a credit card? I can't see anything behind this giant straw man.
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Re: Supreme court debate Affodable Care Act

Postby Steroid » Sat Mar 31, 2012 9:26 pm UTC

No, just one that says you have to pre-pay for it by buying insurance.
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Re: Supreme court debate Affodable Care Act

Postby Ghostbear » Sat Mar 31, 2012 9:39 pm UTC

Steroid wrote:The rights laid out in Amendments 1-3 are indeed acknowledged as inherent, and are useful to the individual--the right to publish a paper saying, "Fuck you," the right to own a gun, the right to tell a soldier, "Go sleep out in the rain, bitch." The rights in Amendments 4-8 are only procedural. They come into effect only when in the justice system. I don't want to exercise my right to a speedy trial, because I want to not be tried at all, having not committed a crime. 9-10 are basically the amendments you say I should be pushing for--"Everything not listed here." That should include the right to choose what I eat (and how I pay for my health care) without actually being written down as such.

A literal interpretation of the 9th amendment (the 10th amendment does not use the words "right" or "rights" at all -- only "powers") would result in a completely non-functional government. It'd give you the right murder and to not be punished for that, even if in the presence of a fair and legal trial. It'd give you the right to steal from others without punishment, the right to declare yourself president and nullify the constitution, the right to take away the rights of others. It would give you the right to not obey the law and not be subject to the judicial system. It would create complete anarchy. The spirit of the 9th amendment is to say "Just because we haven't created a specific section in the constitution around a right does not mean it does not exist". It prevents your rights from being limited solely to the other amendments to the constitution, but it does not prevent laws from being passed that bar you some of them. You do not have the right to interfere with the rights of others, and we have created a whole legal framework around that. We can deny you your rights to certain actions if they interfere with the rights of others, even though a literal interpretation would say that the government can not do that, because you have a "right" to it. If the 9th amendment could be taken literally, there would be no need for the rest of the bill of rights.

So, again, if you feel there are inherent rights that are not being specifically protected enough, you should try to get them added to the constitution as amendments. We had to do that for several important rights: the right to not be a slave, the right for women to vote (and several other rights related to voting), the right for residents of DC to be represented in the electoral college, the right to equal protection under the law, the right to due process... If the 9th amendment already covered them sufficiently, then we wouldn't have needed those amendments. But we did need those amendments, and I would consider many of the rights granted by them to be fundamental or otherwise significant.
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Re: Supreme court debate Affodable Care Act

Postby Steroid » Sat Mar 31, 2012 10:00 pm UTC

Ghostbear wrote:A literal interpretation of the 9th amendment (the 10th amendment does not use the words "right" or "rights" at all -- only "powers") would result in a completely non-functional government.

That's enough right there. Basically what you've said is that the constitution doesn't work. If we have to have a non-literal interpretation of any part of the constitution, then there's no point in having the thing--just let the government pass what it wants. But, that's not how I read it. What it's saying is, "All of the powers of the branches are dependent on not violating any of the above rights, or the rights we haven't listed. In writing it, they didn't anticipate that Congress would try to actually manage people's lives, or that if they did, the Supreme Court would uphold it. All the Section 8 powers--armies, coining money, foreign trade, the post office, none of them encompass saying to the regular citizen, "You can't do this," or "You must do this," with the exception of levying taxes. So there was no compunction about giving blanket rights to the people, or deferring the control of such to the states, because the federal government wasn't supposed to get anywhere near those rights.

So now we're dealing with a conditional question: given that that level of non-interference has gone by the boards, exactly what are the rights of people that congress can't touch? To which I answer, as many and as much as gets us to the opposite of the premise. And the Supreme Court seems to at least agree that there definitely has to be a standard by which some of those rights exist, though they're probably willing to set it lower than I am.
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Re: Supreme court debate Affodable Care Act

Postby Silknor » Sat Mar 31, 2012 10:23 pm UTC

Steroid wrote:But isn't that SCOTUS's job, to take the positions that are out of the mainstream because the constitution says so? If they can't bring the principles into play, who can?

And the constitution being simple shouldn't mean that we find implied powers, it should mean that government itself should be simple.


Is one job of the Court to serve as a bulwark against violations of liberty? Absolutely. But I didn't use mainstream to mean the court taking an unpopular position. Rather I meant the views in question (there are no implied powers, Social Security is unconstitutional, etc) are far outside of the legal mainstream. They are positions soundly rejected by most or all current Supreme Court Justices, most legal scholars, etc. Now if those positions are correct, then of course it's the Court's job to uphold the principle. But at the very least, a majority of the court does not agree that those positions are right.

We don't find implied powers in the Constitution because the Constitution didn't have enough powers for the federal government and we wanted more. We do so rather because it seems to be the correct way to interpret the text and structure of the Constitution. To give just one example, the 10th Amendment states:

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.


If the federal government was to have only the powers explicitly granted to it, nothing would have been easier than to have written the 10th Amendment to say "expressly delegated." Instead, a conscious choice was made not to do that, a choice which has significant implications for how we interpret the rest of the Constitution.

Steroid wrote:But when those costs are paid (or benefits restored) by government, losses are also created, losses both to freedom and to economic efficiency. Just because the free market can't achieve something at all does not imply that the government can accomplish it efficiently.


To make this more concrete, lets stipulate that a widget costs $10 to make and the production of it creates $5 worth of pollution (ie. an amount of pollution that society would pay $5 to avoid). Further lets say it's a competitive market, so the widget sells for its marginal cost. There is a loss of economic efficiency caused by people not internalizing the pollution costs in the price of the widget. For example, if they value their first widget at $20, the next at $16 and so on, then they will buy 3 widgets. But the sale of the 3rd widget represents a net loss to society! (The consumer surplus is $2, the producer surplus is $0, and the production imposes $5 in pollution costs that neither party to the transaction has to pay, for a total loss to society of $3). If we impose a per-widget tax of $5, the price rises to $15 and the consumer only buys 2 of them. But society does better overall.

Now does this entail some loss of freedom, I don't think it makes much sense to describe it as such, but I recognize others do. What about economic efficiency? I agree, it's not perfect. Perfect would be the above internalizing of externalities happening (and thus the consumer buying just 2) without needing anyone to take the time to fill out tax forms for the production. But so what? Perfect isn't achievable in this case, either in the free market or via regulation. But it's still a superior outcome for society even if the regulation/tax imposes some compliance costs (not Pareto optimum though because there is less consumer surplus).
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Re: Supreme court debate Affodable Care Act

Postby Ghostbear » Sat Mar 31, 2012 11:21 pm UTC

Steroid wrote:That's enough right there. Basically what you've said is that the constitution doesn't work. If we have to have a non-literal interpretation of any part of the constitution, then there's no point in having the thing--just let the government pass what it wants.

No, that's your unreasonable interpretation of the consequences of what I said, not what I actually said at all. You can't take exacting and literal interpretations of the bill of rights, because it very quickly ceases to make any sense at all. Take everyone's* favorite amendment, the first:
The first Amendment to the US Constitution wrote:Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Emphasis mine. Especially now that the bill of rights has been incorporated against the states, this would state that there is exactly zero regulations that can be placed on speech. You couldn't make death threats a crime, nor transmission or communication of any protected (e.g. classified) information. No patient confidentiality. No laws against slander or fighting words. Nothing to stop you from actually doing the classic "shouting 'fire!' in a crowded theater". You could not require companies to advertise truthfully. Making and distributing computer viruses would be perfectly legal. As would non-physical bullying. It would be expressly illegal to prevent any of that. This would also, in practice, invalidate or otherwise conflict with the Copyright Clause earlier in the constitution.

The restrictions on the free exercise of religion would mean that you couldn't prevent anyone from doing something otherwise illegal, so long as they ensured it was a religious practice. There would be nothing to prevent worshipers of Tlaloc from making a human sacrifice to ensure rainfall, or any other variations on horrible things that could be made into a religious practice.

The text is not meant to be interpreted that literally. In fact, with some sections of it, the courts have made their decisions based, in part, on the expectations of the author of the text's intentions, through other writings of theirs that were not included specifically in the text itself. This is the reality of how the constitution works with the modern world, not my assumptions. And the reality indicates that it does work, as we are still here over 200 years later: over the same period of time, France has gone from: a monarchy, to the 1st republic, to several pre-imperial stages (national assembly, directory, consulate), to an empire, back to a monarchy again, to the second republic, to another empire, to the third republic, to various intra-war states, to the fourth republic, and then finally, to the 5th republic. Many other first world nations have likewise gone through multiple government setups in that time period (though I don't think any have been quite so tumultuous as France's has been). The US has stayed under the constitution that whole time; I'd say it's working quite well.

* Not actually everyone's, but generally the most popular one.
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Re: Supreme court debate Affodable Care Act

Postby Steroid » Sat Mar 31, 2012 11:49 pm UTC

Silknor wrote:
Steroid wrote:But isn't that SCOTUS's job, to take the positions that are out of the mainstream because the constitution says so? If they can't bring the principles into play, who can?

And the constitution being simple shouldn't mean that we find implied powers, it should mean that government itself should be simple.


Is one job of the Court to serve as a bulwark against violations of liberty? Absolutely. But I didn't use mainstream to mean the court taking an unpopular position. Rather I meant the views in question (there are no implied powers, Social Security is unconstitutional, etc) are far outside of the legal mainstream. They are positions soundly rejected by most or all current Supreme Court Justices, most legal scholars, etc. Now if those positions are correct, then of course it's the Court's job to uphold the principle. But at the very least, a majority of the court does not agree that those positions are right.


Which if nothing else answers nitePhyrre's question about why I would want a limit on some things even if everyone wanted them. If everyone in the government including the justices believed that it was right to selectively kill some citizen because it was convenient for them to do so, I would want a check on that even if there wasn't enough electoral support to stop them.

We don't find implied powers in the Constitution because the Constitution didn't have enough powers for the federal government and we wanted more. We do so rather because it seems to be the correct way to interpret the text and structure of the Constitution. To give just one example, the 10th Amendment states:

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.


If the federal government was to have only the powers explicitly granted to it, nothing would have been easier than to have written the 10th Amendment to say "expressly delegated." Instead, a conscious choice was made not to do that, a choice which has significant implications for how we interpret the rest of the Constitution.

Really? We're one adverb away from freedom? Then I guess I should be supporting an amendment. Maybe it should say, "And we really really mean it" too.
To make this more concrete, lets stipulate that a widget costs $10 to make and the production of it creates $5 worth of pollution (ie. an amount of pollution that society would pay $5 to avoid). Further lets say it's a competitive market, so the widget sells for its marginal cost. There is a loss of economic efficiency caused by people not internalizing the pollution costs in the price of the widget. For example, if they value their first widget at $20, the next at $16 and so on, then they will buy 3 widgets. But the sale of the 3rd widget represents a net loss to society! (The consumer surplus is $2, the producer surplus is $0, and the production imposes $5 in pollution costs that neither party to the transaction has to pay, for a total loss to society of $3). If we impose a per-widget tax of $5, the price rises to $15 and the consumer only buys 2 of them. But society does better overall.

Now does this entail some loss of freedom, I don't think it makes much sense to describe it as such, but I recognize others do. What about economic efficiency? I agree, it's not perfect. Perfect would be the above internalizing of externalities happening (and thus the consumer buying just 2) without needing anyone to take the time to fill out tax forms for the production. But so what? Perfect isn't achievable in this case, either in the free market or via regulation. But it's still a superior outcome for society even if the regulation/tax imposes some compliance costs (not Pareto optimum though because there is less consumer surplus).

No, perfect would be either the widgets not causing the pollution or society not minding the pollution. I think the difference between us is that I think that societies should be allowed to do what the people want, be it pollute or consume or engage in unhealthful behaviors, and that governments are there to make sure that those desires are put into effect efficiently; but you think that societies should make the best decisions to grow and thrive, and that governments should control for that. There's still a lot of my view in the constitution, and in the population in general, though.

Ghostbear wrote:The text is not meant to be interpreted that literally. In fact, with some sections of it, the courts have made their decisions based, in part, on the expectations of the author of the text's intentions, through other writings of theirs that were not included specifically in the text itself. This is the reality of how the constitution works with the modern world, not my assumptions. And the reality indicates that it does work, as we are still here over 200 years later: over the same period of time, France has gone from: a monarchy, to the 1st republic, to several pre-imperial stages (national assembly, directory, consulate), to an empire, back to a monarchy again, to the second republic, to another empire, to the third republic, to various intra-war states, to the fourth republic, and then finally, to the 5th republic. Many other first world nations have likewise gone through multiple government setups in that time period (though I don't think any have been quite so tumultuous as France's has been). The US has stayed under the constitution that whole time; I'd say it's working quite well.

But why not do what the constitution provides for and amend it to alter the first amendment? If people are regularly shouting fire in theaters, and enough people don't like that, pass the amendment through the process. To me, a few theater panics are less deadly than the non-literal, subjective interpretation of the law that you're advocating. But since subjectivity is the nature of the beast, there certainly shouldn't be any complaints if the Supreme Court subjectively says that "regulating commerce" excludes compelling a purchase, just because for once the hammer falls on the side of less government power and more individual power.
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Re: Supreme court debate Affodable Care Act

Postby Ghostbear » Sun Apr 01, 2012 12:15 am UTC

Steroid wrote:But why not do what the constitution provides for and amend it to alter the first amendment? If people are regularly shouting fire in theaters, and enough people don't like that, pass the amendment through the process. To me, a few theater panics are less deadly than the non-literal, subjective interpretation of the law that you're advocating. But since subjectivity is the nature of the beast, there certainly shouldn't be any complaints if the Supreme Court subjectively says that "regulating commerce" excludes compelling a purchase, just because for once the hammer falls on the side of less government power and more individual power.

You're missing the point: this isn't how I think it should work, it isn't what I'm saying we should switch to; this is how it already works. This is how things actually are, right now, and how they have been for hundreds of years. It's shown by the fact that there are actual limitations on speech that were created. By the fact that the 1st amendment is interpreted to indicate a separation of church of state, despite never using those words. It's shown through religion not being a get out of jail free card. Hell, it's shown by the fact that we need a supreme court in the first place: if everything was interpreted exactingly literally, we wouldn't need a court so much as a dictionary.The US is a common law country; these are features, not bugs.

This isn't about subjectivity; the legal process is still intended to be objective. It has to consider precedent and prior case law. A judge can't make up their own definitions for words, or interpret something in a specific way because they want to. It needs to be backed up by law and reasoning. In this case, legal precedents such as Wickard v. Filburn and Gonzales v. Raich would show that this law is valid as per prior legal interpretations of the commerce clause of the constitution. If the SCOTUS wishes to find it unconstitutional, it has to do so objectively within the constraints of those legal precedents, the understood interpretations of the commerce clause and the powers of the federal government.
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Re: Supreme court debate Affodable Care Act

Postby Steroid » Sun Apr 01, 2012 1:00 am UTC

Ghostbear wrote:You're missing the point: this isn't how I think it should work, it isn't what I'm saying we should switch to; this is how it already works. This is how things actually are, right now, and how they have been for hundreds of years. It's shown by the fact that there are actual limitations on speech that were created. By the fact that the 1st amendment is interpreted to indicate a separation of church of state, despite never using those words. It's shown through religion not being a get out of jail free card. Hell, it's shown by the fact that we need a supreme court in the first place: if everything was interpreted exactingly literally, we wouldn't need a court so much as a dictionary.The US is a common law country; these are features, not bugs.

This isn't about subjectivity; the legal process is still intended to be objective. It has to consider precedent and prior case law. A judge can't make up their own definitions for words, or interpret something in a specific way because they want to. It needs to be backed up by law and reasoning. In this case, legal precedents such as Wickard v. Filburn and Gonzales v. Raich would show that this law is valid as per prior legal interpretations of the commerce clause of the constitution. If the SCOTUS wishes to find it unconstitutional, it has to do so objectively within the constraints of those legal precedents, the understood interpretations of the commerce clause and the powers of the federal government.

But A) originalism is a potential way of operating, that Justice Scalia for example has advocated, which would give greater weight to the literal interpretation than the common law, B) precedents can be overturned just on the climate of the country, like Brown v. BOE, C) even if it's not a complete reversal, just because precedent is pointing in one direction (more congressional authority) doesn't mean that following it means going further in that direction.

And what ARE you saying is how it should work and what we should switch to?
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Re: Supreme court debate Affodable Care Act

Postby Ghostbear » Sun Apr 01, 2012 1:27 am UTC

Steroid wrote:But A) originalism is a potential way of operating, that Justice Scalia for example has advocated, which would give greater weight to the literal interpretation than the common law, B) precedents can be overturned just on the climate of the country, like Brown v. BOE, C) even if it's not a complete reversal, just because precedent is pointing in one direction (more congressional authority) doesn't mean that following it means going further in that direction.

(A) Greater weight is not the same 100% weight to full, exact, and inflexible literal, which is what you're advocating. Originalism consists of two branches, original intent and original meaning, neither of which is the same as "exact, unflinching meaning".

Beyond that, that it's a potential or viable way of doing things does not mean it how things are done in general. Originalism is also a wonderful way to keep (or revert) our society to an 18th or 19th century level of rights. Originalism would find that "equal protection of the laws" doesn't apply to minorities or women. It'd find the bill of rights does not restrict states. It wouldn't have allowed Brown V. Board of Education. For someone who has been harping so much about freedom and liberty, I find this to be a bewildering stance for you to have.

(B) Of course they can, but precedents are not overturned "Because we feel like it", they're overturned due to a different interpretation of the laws and/or other precedents, not judges just outright ignoring precedent. In the case of Brown v. Board of Education, they found that the basis of the precedent in Plessy v. Ferguson -- that separate but equal satisfied the requirements of the 14th amendment for equal protection -- was not true. They reached this conclusion by determining that the separation itself, regardless of if it provided equal quality and treamtment, violated the equal protection clause. This wasn't a reasoning they pulled out of their asses because they didn't like the precedent.

(C) It would mean that you'd have to make the legal decision based on finding that the case did go in excess of precedent and that that excess was unconstitutional on its own.

Steroid wrote:And what ARE you saying is how it should work and what we should switch to?

I have no clue what you are trying to say here, because it's punctuated as a question but written as a statement. I pointed out to you that the 9th amendment does not provide sufficient protections of your desired inherent rights, either for legal cases or just for your own sake. This is because of how law is practiced in the US; just because you don't like that doesn't mean it's not true. If you want it to be different, advocate for that, request another amendment that requires everything to be interpreted that way, create a new school of legal thought based around it, whatever works. But don't pretend that your desired end state is how things already are, and then base your arguments around it. I have not been advocating for legal theory to be switched to a new method, nor have I been saying "this is how it should be done", I've been telling you how it already does work, as point of fact.
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Re: Supreme court debate Affodable Care Act

Postby Steroid » Sun Apr 01, 2012 1:42 am UTC

Hang on, we're getting confused here. Either we're talking about "the way things are" or "the way things should be." You said that you were talking about the as-is, and that I was talking about should-bes, but when I started talking about as-is, you're still addressing my should-bes. So what I'm saying is that under the as-is, I think that the Court *could* overturn the ACA on the basis of originalism, which might be Scalia's reasoning, or by reversing the precedent based on the pulse of the country (not "because they feel like it"), or by saying that since there is no precedent on point, that they should err on the side of caution. Any of those would not greatly change the climate of subjectivity, precedent, and non-literal interpretation.

Under the should-be, I'm saying that the Court should be literalists, examining only the words of the constitution and of the statutes they're judging, and at the same time always erring toward giving the people more power and away from giving the federal government more power unless it's explicitly written the other way, with "Go amend it" as the standard response for when people seem to really want more government power. Which would have the effect of saying both to strike down ACA and reverse Wickard.

I'm getting your as-is view, I'm asking for your should-be view.
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Re: Supreme court debate Affodable Care Act

Postby TheGrammarBolshevik » Sun Apr 01, 2012 1:50 am UTC

Steroid wrote:
Silknor wrote:
Steroid wrote:But isn't that SCOTUS's job, to take the positions that are out of the mainstream because the constitution says so? If they can't bring the principles into play, who can?

And the constitution being simple shouldn't mean that we find implied powers, it should mean that government itself should be simple.


Is one job of the Court to serve as a bulwark against violations of liberty? Absolutely. But I didn't use mainstream to mean the court taking an unpopular position. Rather I meant the views in question (there are no implied powers, Social Security is unconstitutional, etc) are far outside of the legal mainstream. They are positions soundly rejected by most or all current Supreme Court Justices, most legal scholars, etc. Now if those positions are correct, then of course it's the Court's job to uphold the principle. But at the very least, a majority of the court does not agree that those positions are right.


Which if nothing else answers nitePhyrre's question about why I would want a limit on some things even if everyone wanted them. If everyone in the government including the justices believed that it was right to selectively kill some citizen because it was convenient for them to do so, I would want a check on that even if there wasn't enough electoral support to stop them.

I think you still misunderstand. It's not that most legal scholars think that implied powers are right. It's that they think that they're constitutionally granted; they're legal. If something is legal, then by definition there is no legal check on it, no matter how wrong it may be.
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Re: Supreme court debate Affodable Care Act

Postby Ghostbear » Sun Apr 01, 2012 3:07 am UTC

Steroid wrote:Hang on, we're getting confused here. Either we're talking about "the way things are" or "the way things should be." You said that you were talking about the as-is, and that I was talking about should-bes, but when I started talking about as-is, you're still addressing my should-bes.

The "way things are" was a discussion on your opinion with respect to inherent rights and the 9th and 10th amendments. Which was based on two points: (1) That exacting literal interpretations would not function with the constitution as written, and (2) dealing with the actual topic, that the individual mandate does not violate any of the rights granted to the people of the US by the constitution, because "the right to pay for healthcare in the manner you choose" is not a right that is protected by the 9th and 10th amendments in practice, and if you feel it is an inherent right that is being violated and wish to have it protected, you will need a constitutional amendment to accomplish that.

Steroid wrote:So what I'm saying is that under the as-is, I think that the Court *could* overturn the ACA on the basis of originalism, which might be Scalia's reasoning, or by reversing the precedent based on the pulse of the country (not "because they feel like it"), or by saying that since there is no precedent on point, that they should err on the side of caution. Any of those would not greatly change the climate of subjectivity, precedent, and non-literal interpretation.

The "pulse of the country" is not a valid legal doctrine for reversing precedent. It might be something that slowly creeps into the legal process through replacement justices and judges being in support of something, but it is not sufficient legal reason for a judge or justice to decide something. If congress passes a law that is constitutional and the people of the US hate that law, a judge can't overturn it on that fact: it would be up to the people to elect new representatives to repeal the law.

I also find your claim of there being no precedent strange, considering that I linked you to two prior precedents -- SCOTUS decisions -- dealing with the commerce clause and the rights of the government to regulate interstate commerce. There is precedent, and it is in favor of this law. One of the cases even has Scalia in concurrence. That doesn't mean they can't overturn it of course, but it does mean that to overturn it they need some legal reasoning for such (not "the pulse of the country"), and if they did not want to overturn precedent, it'd have to be very narrow. As a point of personal opinion, I don't think the legal reasoning exists for them to make the narrow ruling without straining the courts credibility as an unbiased entity, yet, should they overturn it, I would be very surprised if they didn't do so with a narrow ruling.

Steroid wrote:Under the should-be, I'm saying that the Court should be literalists, examining only the words of the constitution and of the statutes they're judging, and at the same time always erring toward giving the people more power and away from giving the federal government more power unless it's explicitly written the other way, with "Go amend it" as the standard response for when people seem to really want more government power. Which would have the effect of saying both to strike down ACA and reverse Wickard.

I'm getting your as-is view, I'm asking for your should-be view.

Well, as I've said, switching the full out literal interpretation now will result in us having a broken government for quite possibly several decades, if not longer. "Go amend it" is not a useful response when you've just gone and invalidated 90+% (honestly, I expect it'd actually end up as 99.999+%) of societies laws, merely because you wish everything conformed to your ideal. Especially when you consider how long and arduous the amendment process is; it's meant to be as difficult as it is, and part of the reason for that is to prevent nation shattering changes like this, no matter how good the intentions or possible long-term consequences of them are. You might feel that the end result in the long run would be better, and maybe it would be, maybe it wouldn't be, I don't know. What I do know is that government is meant to serve the people of the present as well as it's future citizens, and such a change would not be serving those of us living in the present. It really could work out wonderfully for everyone 30 years after the fact, but if it forced the 300 million Americans alive today to live in utter chaos until then, it'd absolutely be a bad idea, simply because of that factor. Such a system can not work with the constitution as written. To make society functional under it, you'd need to write many very specific, very long winded amendments or just rewrite the entire document from scratch.

In that process, you'd lose one of the greatest strengths of the constitution, which is that it's not tied to the times; it can adapt and still be relevant for future generations. Imagine just the 1st amendment if they had to go with the level of specification that your ideal would require for anything to function: the 1st would have had a list on speech that isn't protect (slander, libel, etc.), religious practices that can't circumvent the law (human sacrifice), religious practices that are protected (I dunno.. baptisms?), and on and on and on. That amendment could have been forced to be pages and pages long, and would have needed to be updated when mass advertising came out to prevent dishonest advertisements. It'd then need to be updated with each new religion that appears. It'd need to have been amended when the telephone was invented, then again with radio and TV, and then another time with the internet. It'd cease to be a practical document, and the frequency with which it'd need to be amended would make that action no longer special; it'd stop being something that the government places any special thought into. And that would be very dangerous, as it'd cause there to be nothing special protecting the protections offered to us by the constitution. If you're changing the bill of rights every decade to keep pace with reality, there's no longer anything stopping some officials from adding in language that is detrimental to its intended purpose; I could easily see the free exercise clause of the 1st amendment, were it to have been updated every couple of decades, as slowly changing to only respect christianity.

In short, I think your ideal is just that: an ideal. It doesn't work with reality, and would not make the situation better in practice, even if, in that fictional ideal, it works wonderfully.

As for what I think should be... For legal structure, I can't say I'm sufficiently knowledgeable enough to say that we should switch to another setup away from common law, though I do find its reliance on precedent to be potentially quite onerous after a state has been around long enough, while also being potentially dangerous and/or complicated and convoluted. I've never lived in a civil law (the great Napoleonic alternative) nation though, and I'm not familiar enough with it to know if it's realistically any better. I do know that our current system has been largely quite successful and functional though, even if it does occasionally reach or perpetuate conclusions that I disagree with; such is the nature of living in a society, so I know that it isn't sufficient reason to deem something a failure or bad idea.
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Re: Supreme court debate Affodable Care Act

Postby nitePhyyre » Sun Apr 01, 2012 5:00 am UTC

Steroid wrote:
nitePhyyre wrote:I think there is a clear line: The fact that no one is honestly arguing for a broccoli mandate. If there ever comes a time when the people of a society think that a broccoli mandate is a good idea, who are you to tell them they are wrong?
But that directly contradicts the idea of inherent individual rights.
No it doesn't. If I believe that a mandate is necessary, proper, commerce, and interstate that does not contradict the very idea of individual rights. The fact that you view every slight disagreement as tyranny is sad. It is the trait of a fanatic.

Steroid wrote:
Ghostbear wrote:A literal interpretation of the 9th amendment (the 10th amendment does not use the words "right" or "rights" at all -- only "powers") would result in a completely non-functional government.
That's enough right there. Basically what you've said is that the constitution doesn't work. If we have to have a non-literal interpretation of any part of the constitution, then there's no point in having the thing--just let the government pass what it wants.
Steroid wrote:Under the should-be, I'm saying that the Court should be literalists, examining only the words of the constitution and of the statutes they're judging, and at the same time always erring toward giving the people more power and away from giving the federal government more power unless it's explicitly written the other way, with "Go amend it" as the standard response for when people seem to really want more government power. Which would have the effect of saying both to strike down ACA and reverse.
Ghostbear, I've always thought that this was a better example of why a literal interpretation is impossible:
No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President;
Literalism is literally impossible. Not unless you completely scrap the current constitution.

Hell, even if you want to use a literal interpretation do you use English from circa 1770 or do you use modern English? If you use modern English how you decide to translate the olde to the new affects the ruling and is non-literal. If you decide to use olde English, you are limiting people's ability to a fair trial, and that would be unconstitutional. Either way, both those problems get worse as the constitution ages and language evolves.

On a side note, with a government of the people, by the people, and for the people saying things like "erring toward giving the people more power and away from giving the federal government more power" are meaningless. You may as well be saying "erring toward giving the people more power and away from giving the people more power".

On a different side note: If the ACA hadn't tried to make a compromise and just went with a regular civilized healthcare system, would there be any constitutional complaints?
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Re: Supreme court debate Affodable Care Act

Postby omgryebread » Sun Apr 01, 2012 5:33 am UTC

nitePhyyre wrote:On a different side note: If the ACA hadn't tried to make a compromise and just went with a regular civilized healthcare system, would there be any constitutional complaints?
You could possibly argue that it doesn't fall under Congress's enumerated powers. This would involve a rather narrow view of the Commerce Clause and the Necessary and Proper clause. Given the expansive view the court has taken of those two, it would be a very hard sell. This is a conservative court, but I'd find it difficult to believe that they wouldn't vote to uphold.
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Re: Supreme court debate Affodable Care Act

Postby Ghostbear » Sun Apr 01, 2012 8:46 am UTC

nitePhyyre wrote:Ghostbear, I've always thought that this was a better example of why a literal interpretation is impossible:

Maybe I'm just tired, but I'm not 100% certain I'm seeing the literal difficulty there. Is it the "at the time of the Adoption of this Constitution" part? That makes a lot of sense, but I can't help but feel I'm wrong. But yeah, the constitution was just plain old not written to be taken 100% literally; the sections are written simply and to the point. If the ACA had been written in the same style, it probably could have been done in a couple dozen pages, at most, instead of 3,000 or however many it is now. A constitution meant to be taken literally would need to be a book, not a document, and even then, it'd fall apart due to societal and technological changes a couple of times every century. Not useful for governing.

nitePhyyre wrote:On a side note, with a government of the people, by the people, and for the people saying things like "erring toward giving the people more power and away from giving the federal government more power" are meaningless. You may as well be saying "erring toward giving the people more power and away from giving the people more power".

This, I think, was just poor phrasing on Steroid's behalf. I think their point was meant to be the rights of the individual vs. the needs of the overall society. While I'm not sure I could find much, if any, agreement with Steroid's general view on things, there is a need for governments to balance the rights of individuals with the rights of society as a whole. As a simple example of such playing out: compulsory military service is of benefit to the whole of society, but is a rather grievous breach of the individual's rights. For countries that need such to meet their security (and I use "security" here deliberately: military goals that fall outside of basic safekeeping of the state should be treated differently) needs, this is generally considered an acceptable trade off. For nations that don't need it to meet their security needs, it's generally considered unacceptable. Hence many nations in the modern era having a draft on the books, but only for times of great need for national defense.

All that said, I don't see the rights being breached by the mandate being done so with any particular severity, and by the numbers, it would be a very small subset of the population, while the societal gain is not insignificant at all. As such, I don't think the mandate goes anywhere near the danger zone of that balance.

omgryebread wrote:
nitePhyyre wrote:On a different side note: If the ACA hadn't tried to make a compromise and just went with a regular civilized healthcare system, would there be any constitutional complaints?

You could possibly argue that it doesn't fall under Congress's enumerated powers. This would involve a rather narrow view of the Commerce Clause and the Necessary and Proper clause. Given the expansive view the court has taken of those two, it would be a very hard sell. This is a conservative court, but I'd find it difficult to believe that they wouldn't vote to uphold.

I'm not sure how a socialized healthcare would need to fall under those clauses? There'd already be precedent for them through medicare, medicaid, and social security already being found to be constitutional. Actually, couldn't a universal healthcare system be implemented relatively easily and practically by just expanding medicare to cover everybody? The program is already legal, so expanding it to cover more people should be legal as well. I don't think a properly implemented setup would encounter any constitutional challenges that had any teeth to them.
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Re: Supreme court debate Affodable Care Act

Postby Steroid » Sun Apr 01, 2012 9:20 am UTC

Ghostbear wrote:The "way things are" was a discussion on your opinion with respect to inherent rights and the 9th and 10th amendments. Which was based on two points: (1) That exacting literal interpretations would not function with the constitution as written, and (2) dealing with the actual topic, that the individual mandate does not violate any of the rights granted to the people of the US by the constitution, because "the right to pay for healthcare in the manner you choose" is not a right that is protected by the 9th and 10th amendments in practice, and if you feel it is an inherent right that is being violated and wish to have it protected, you will need a constitutional amendment to accomplish that.

As far as (2), I agree that it will not be seen by the court, or by people in general, that the mandate is unconstitutional based on the inherent-rights concept. That's a should-be for me. But for (1), I definitely think that it would work, at least for my standard of "work" which is about coming as close as possible to the correct government, as opposed to keeping things together.

The "pulse of the country" is not a valid legal doctrine for reversing precedent. It might be something that slowly creeps into the legal process through replacement justices and judges being in support of something, but it is not sufficient legal reason for a judge or justice to decide something. If congress passes a law that is constitutional and the people of the US hate that law, a judge can't overturn it on that fact: it would be up to the people to elect new representatives to repeal the law.

Now who's being idealistic? Judges do that all the time, and the Brown case was an example. Or, if you prefer to say that Brown was based on the evidence that Plessy didn't work because once that decision was in force, the Court found that the standard couldn't be met, then it might say the same thing here with Wickard playing Plessy--say that Wickard intended to allow certain aspects of commerce to go unregulated, but that Congress hasn't held to that standard, and so they have to strike down ACA.

But I'm more cynical, and I think that Brown was largely influenced by the Civil Rights movement, and that this case will be influenced by the political climate. And I'm also cynical enough to think that elected representatives who want to overturn a law (or curtail expansion of it) would sooner appoint judges who can get around to doing it, since that provides them cover.

I also find your claim of there being no precedent strange, considering that I linked you to two prior precedents -- SCOTUS decisions -- dealing with the commerce clause and the rights of the government to regulate interstate commerce. There is precedent, and it is in favor of this law. One of the cases even has Scalia in concurrence. That doesn't mean they can't overturn it of course, but it does mean that to overturn it they need some legal reasoning for such (not "the pulse of the country"), and if they did not want to overturn precedent, it'd have to be very narrow. As a point of personal opinion, I don't think the legal reasoning exists for them to make the narrow ruling without straining the courts credibility as an unbiased entity, yet, should they overturn it, I would be very surprised if they didn't do so with a narrow ruling.

No precedent *on point*. Neither Wickard nor Gonzales address purchase mandates, or indeed the consumer side of commerce at all. If this case were about challenging cross-state restrictions on selling insurance, then those would be on point. But this is terra incognita. It also doesn't help for clarity that the government in orals tried to dip their toe into the issue, saying that not following the mandate would not entail breaking the law, and for example that someone on probation who paid the penalty instead of buying insurance would not have violated their probation.

Well, as I've said, switching the full out literal interpretation now will result in us having a broken government for quite possibly several decades, if not longer. "Go amend it" is not a useful response when you've just gone and invalidated 90+% (honestly, I expect it'd actually end up as 99.999+%) of societies laws, merely because you wish everything conformed to your ideal. Especially when you consider how long and arduous the amendment process is; it's meant to be as difficult as it is, and part of the reason for that is to prevent nation shattering changes like this, no matter how good the intentions or possible long-term consequences of them are. You might feel that the end result in the long run would be better, and maybe it would be, maybe it wouldn't be, I don't know. What I do know is that government is meant to serve the people of the present as well as it's future citizens, and such a change would not be serving those of us living in the present. It really could work out wonderfully for everyone 30 years after the fact, but if it forced the 300 million Americans alive today to live in utter chaos until then, it'd absolutely be a bad idea, simply because of that factor. Such a system can not work with the constitution as written. To make society functional under it, you'd need to write many very specific, very long winded amendments or just rewrite the entire document from scratch.

In that process, you'd lose one of the greatest strengths of the constitution, which is that it's not tied to the times; it can adapt and still be relevant for future generations. Imagine just the 1st amendment if they had to go with the level of specification that your ideal would require for anything to function: the 1st would have had a list on speech that isn't protect (slander, libel, etc.), religious practices that can't circumvent the law (human sacrifice), religious practices that are protected (I dunno.. baptisms?), and on and on and on. That amendment could have been forced to be pages and pages long, and would have needed to be updated when mass advertising came out to prevent dishonest advertisements. It'd then need to be updated with each new religion that appears. It'd need to have been amended when the telephone was invented, then again with radio and TV, and then another time with the internet. It'd cease to be a practical document, and the frequency with which it'd need to be amended would make that action no longer special; it'd stop being something that the government places any special thought into. And that would be very dangerous, as it'd cause there to be nothing special protecting the protections offered to us by the constitution. If you're changing the bill of rights every decade to keep pace with reality, there's no longer anything stopping some officials from adding in language that is detrimental to its intended purpose; I could easily see the free exercise clause of the 1st amendment, were it to have been updated every couple of decades, as slowly changing to only respect christianity.

In short, I think your ideal is just that: an ideal. It doesn't work with reality, and would not make the situation better in practice, even if, in that fictional ideal, it works wonderfully.

And that's a perfectly viable opinion, though you did leave out another option: to not amend the constitution and let the broad freedoms stand. Let the people who are abusing free speech and property rights continue to do so, because most of them won't, and the ones who are can't be as bad as any curtailment of the rights. Treat telephone and internet speech the same as face-to-face speech for legal purpose. Move human-sacrifice laws to the state level, so that if the sacrificers can get enough people on some land, they can apply for statehood and keep practicing it. If you want a society under control, that's fine, just take cognizance of those of us who don't, because while you say our system has been mostly successful, you're not looking at it from our perspective, which sees it as mostly encroaching on liberty.

nitePhyyre wrote:
Steroid wrote:
nitePhyyre wrote:I think there is a clear line: The fact that no one is honestly arguing for a broccoli mandate. If there ever comes a time when the people of a society think that a broccoli mandate is a good idea, who are you to tell them they are wrong?
But that directly contradicts the idea of inherent individual rights.
No it doesn't. If I believe that a mandate is necessary, proper, commerce, and interstate that does not contradict the very idea of individual rights. The fact that you view every slight disagreement as tyranny is sad. It is the trait of a fanatic.

OK, let's work what I say is a contradiction and see if we can't drill down on it. I'm saying that if society can permissibly mandate broccoli, then it can mandate anything because it is, as you say, a slight disagreement and not an issue of great import. If both the momentous and the trivial have the potential to be properly controlled by society via the government, then there's no activity that must be controlled by the individual who acts in despite of society. And if an individual has no conceptual territory that is his to control and cannot be regulated, then he has no inherent rights, only privileges that exist at the pleasure of society.

So which of those conditionals are you taking issue with?

Steroid wrote:Ghostbear, I've always thought that this was a better example of why a literal interpretation is impossible:
No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President;
Literalism is literally impossible. Not unless you completely scrap the current constitution.

Why is that impossible? Because of the second comma, which is saying that natural born citizens have to be so at the time of the adoption? OK, here's why I think literalism can hold here: A) this is procedural, talking about qualifications for president, so a freer standard of interpretation can be allowed. If the government wants to play fast and loose with who it puts in the White House, that's fine. But if it read, "No person except. . . shall be eligible to own property," then I would argue that the ambiguity should be resolved toward the people and we'd say that the first part applies to citizens now. B) If that ambiguity does exist and has a chance to be interpreted as saying that you had to be alive at the time of the adoption to be president, then amend it to strike the comma. That's a simple amendment that shouldn't have trouble passing muster.

On a side note, with a government of the people, by the people, and for the people saying things like "erring toward giving the people more power and away from giving the federal government more power" are meaningless. You may as well be saying "erring toward giving the people more power and away from giving the people more power".

Erase and replace with "individuals" if that helps. Or, if you want it clearer, "toward the government" means "toward making what some (or most) people want the standard for all," and "toward the people" means "toward leaving the standard for each person to pick on his own." And I think that interpretation should always favor the latter.

On a different side note: If the ACA hadn't tried to make a compromise and just went with a regular civilized healthcare system, would there be any constitutional complaints?

How do you mean civilized? Single-payer? Nationalize the industry? The latter might break new ground. Single-payer, so long as it left private care as an option would have Wickard mostly on point, but I think that A) if passed, it would mark a good time to revisit Wickard and try and get it overturned, and B) it would be much harder to pass. Don't forget that ACA barely made it into law, needed one-party control of all three branches plus a super-majority in the Senate, had to hide its nature as a tax (if it is such) to ameliorate the backlash of people who didn't want it, is still unpopular, and was the signature legislation of a president in the first year of his first term. Going further than ACA would require a strong shift in the landscape.
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Re: Supreme court debate Affodable Care Act

Postby addams » Sun Apr 01, 2012 11:26 am UTC

omgryebread wrote:
nitePhyyre wrote:On a different side note: If the ACA hadn't tried to make a compromise and just went with a regular civilized healthcare system, would there be any constitutional complaints?
You could possibly argue that it doesn't fall under Congress's enumerated powers. This would involve a rather narrow view of the Commerce Clause and the Necessary and Proper clause. Given the expansive view the court has taken of those two, it would be a very hard sell. This is a conservative court, but I'd find it difficult to believe that they wouldn't vote to uphold.


By Regular Civilized Health Care System are you referring to a nationalized health care system? A system that recognizes the inherent worth of every person?

That kind of a system would be cheaper to fund and more fun to operate that the new Homeland Security has been. It's True!

The infrastructure is already in place. Much of it was already Publicly Funded. To move to a single payer system would be easy as pie. (As we all know, Pie is a challenge.)

I still think that it is a worthy challenge. It is better than what the people have now. Far better.

From the letter of Independence:
"Life, Liberty and the pursuit of Happiness"

Sure; What we can do to allow one another to pursue Happiness has changed in the last few hundred years. Medical care was not then what it is now.

Does it need to be inside the constitution? Freedom from unnecessary suffering.
O.K. You attorneys go on chatting. The people that need food, medicine, shelter, compassionate care; They will wait patiently for you to recognize your selves in them? Is that what we are waiting for?

The first medical question is what is wrong with you?
Not; How much money do you have?

Simple Stupid Plan:
1. All Homeland Security employees are tested.
1a.) If, each individual passes with some skills that can be used in Medicine or Social Work, then that individual is put to work.
1b.) ech. It would never work. What are we going to do with a bunch of disgruntled agents? Nothing more dangerous than an agent scorned. A group of disgruntled agents might be more dangerous.

Homeland Security is here to stay. Medical Care for the Masses? Nah. Where is the compelling argument for that?
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Re: Supreme court debate Affodable Care Act

Postby Ghostbear » Sun Apr 01, 2012 12:04 pm UTC

Steroid wrote:Now who's being idealistic? Judges do that all the time, and the Brown case was an example. Or, if you prefer to say that Brown was based on the evidence that Plessy didn't work because once that decision was in force, the Court found that the standard couldn't be met, then it might say the same thing here with Wickard playing Plessy--say that Wickard intended to allow certain aspects of commerce to go unregulated, but that Congress hasn't held to that standard, and so they have to strike down ACA.

But I'm more cynical, and I think that Brown was largely influenced by the Civil Rights movement, and that this case will be influenced by the political climate. And I'm also cynical enough to think that elected representatives who want to overturn a law (or curtail expansion of it) would sooner appoint judges who can get around to doing it, since that provides them cover.

I was saying it's not the valid legal doctrine. It can not be the reasoning used to rule in a case. If you read Brown V. Board of Education, you won't see any mention at all of popular or public opinion. Instead, their judicial logic and reasoning were spelled out simply and to the point:
Brown V. Board of Education wrote:We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.

They go over the importance and effects of education in the then-present US, the psychological (and similar) effects of separate on education, and then reach their conclusion based on the prior data. At no point did the court or its ruling-- even if the individual judges might have -- give any credence or weight to public opinion.

Of course, some of that will creep into this case no matter what: Roberts is considered to be a potential swing vote to uphold the act not based on his judicial philosophy, but because of its potential impact on the reputation of the court he presides over. Scalia ignored his prior judicial philosophy in order to reach his conclusion for Bush V Gore, Kennedy is expected to vote to uphold the ACA if he can find a limiting principle by which to keep the results narrow, etc. That doesn't mean they can spell it out in their actual ruling: if they reach their conclusion based on popular or political opinion, but then lack sufficient and good legal reasoning to support it, then they have failed us (the people) as justices of the supreme court.

Steroid wrote:As far as (2), I agree that it will not be seen by the court, or by people in general, that the mandate is unconstitutional based on the inherent-rights concept. That's a should-be for me. But for (1), I definitely think that it would work, at least for my standard of "work" which is about coming as close as possible to the correct government, as opposed to keeping things together.

I can't really respond to this at all without knowing what you define "correct government" to be. Other details relating to this quote I've shoved into my reply below, since they fit better with that and I like consolidating quotes down.

Steroid wrote:And that's a perfectly viable opinion, though you did leave out another option: to not amend the constitution and let the broad freedoms stand. Let the people who are abusing free speech and property rights continue to do so, because most of them won't, and the ones who are can't be as bad as any curtailment of the rights. Treat telephone and internet speech the same as face-to-face speech for legal purpose. Move human-sacrifice laws to the state level, so that if the sacrificers can get enough people on some land, they can apply for statehood and keep practicing it.

Your alternative option misses the whole point of everything I spelled out however: switching to your ideal would create complete and utter chaos in the US. It doesn't matter if you choose to do nothing or to revise everything based off of that, it would barely be above anarchy. It very well might work as the better system if it is designed for that from the start, I intend to make no thorough judgment calls on that (though I am very skeptical) because it's irrelevant. You would curse the 313 million citizens of the US to live in a non-government, in complete chaos, for a great portion of their lives solely to accomplish an ideal. You would be ruining their lives simply because you have a different ideal of what constitutes freedom, and I find that terrifying, and am really and honestly quite confused as to why you continually brush that aside.

"Move it all to the states" is still not a functional rebuttal, because your system would also destroy the infrastructure under which states -- not just the federal government -- are governed. The extent to which things would be moved to the states would have to be such that it would effectively be a return to the articles of confederation, which any student of history will tell you, did not work. It sounds to me what would be ideal for you is just for there to be no federal government, for each of the 50 states to be its own nation; in effect, turning your state government into your federal government. Which I guess is fine, but it's not really ideal for many purposes (economic, military, research, education, culture...). Obviously, moving to new countries is more than a minor hassle (due to actually being a significant hassle, and all that), but I think you'd be best served by one of the smaller European states, or maybe even one of the other, less populous, commonwealth realms (since at least then you wouldn't need a new language). I don't think, just from a realistic standpoint, that you will ever see anything even remotely near the kind of government that you seem to want in the US*.

* Neither will I, for what it's worth, but I think I'll get something far, far closer (distant though it is) to what I want then you will. I also truly don't mean any of that negatively towards you, just an assessment of reality vs. your desires for government.

Steroid wrote:If you want a society under control, that's fine, just take cognizance of those of us who don't, because while you say our system has been mostly successful, you're not looking at it from our perspective, which sees it as mostly encroaching on liberty.

This isn't about society under control. I will thank you to stop hyperbolically mischaracterizing those you disagree with as some variation of "freedom haters". It's not that one system is more successful than the other, it's that the current system is successful at governing, and your system, while a nice ideal, would not be. I think it's pertinent to point out that, tying in with the below, when you have every freedom, you effectively have no freedoms, as everyone would have the unfettered right to deny you yours.

I think your understanding of rights, liberty, and freedom are flawed, however. It based on an ideal of absolute, unfettered rights with no restrictions. That misses that the restrictions that are placed on rights are principally to done to protect against you infringing on the rights of others. Taking the classical example, the abolition of slavery was not about giving the federal government the power to regulate human labor and wages, it was about preventing individuals from taking away the freedom of others. Limitations on free speech, such as slander, libel, fighting words, and so on, are there not to give the government the power to add things to a list of "you can't say this!"; it's to protect others from having their character defaced with lies, from theater goers having their safety impinged by the desire for others to yell "fire!". Restricting false advertising is not about the government taking away the rights to try to sell your product, it's about protecting the rights of the consumer to act on accurate information (an important requirement for free markets!).

It goes on and on: basically all restrictions on your rights are for one (or commonly, both) two things: (1) To protect the rights of others from you, and (2) for the betterment of society as a whole. There needs to be a balance of the individual vs society for (2) of course, but I already mentioned that in my prior post, and I think very many of the rights being limited are done so in so grievous a manner as to make the betterment gained by them to not be worth it. I can easily think of examples of laws where I think that balance has failed, such as just about everything related to the war on drugs (and not just the drugs being made illegal, but also the increased police powers that go with it), or the war on terror (e.g. PATRIOT Act). Or even something that goes in the opposite direction, with too much respect to the individual and too little for society, with most of the copyright strengthening laws (SOPA/PIPA would have fallen under this). In those cases, many of them fail at the balance twice over, in not helping society at large in any significant way (and arguably, actively harming it in some) while also depriving the individual of too many rights. I don't think the ACA as written was the best way to solve the health care problems in the US (I would have vastly preferred a Canadian-esque system), but it does improve the situation, satisfying one half of the balance, and the data I have seen and the understanding of the healthcare market that I've seen also indicates that it provides little actual infringement of personal freedoms, satisfying the other half as well.
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Re: Supreme court debate Affodable Care Act

Postby Steroid » Sun Apr 01, 2012 12:56 pm UTC

Ghostbear wrote:I was saying it's not the valid legal doctrine. It can not be the reasoning used to rule in a case. If you read Brown V. Board of Education, you won't see any mention at all of popular or public opinion. Instead, their judicial logic and reasoning were spelled out simply and to the point:

Oh for certain. But I can't be half-idealistic and half-pragmatic and talk about the legal rationales as if they're honest. Either decisions are made on politics and covered up with legality, or they're decided honestly on legality. I'm saying that many decisions are made by the former process, and I think it will include this case. I'm not saying that the legal reasons don't hold water, but I am saying they're not the sole, pure reasons.

Your alternative option misses the whole point of everything I spelled out however: switching to your ideal would create complete and utter chaos in the US. It doesn't matter if you choose to do nothing or to revise everything based off of that, it would barely be above anarchy. It very well might work as the better system if it is designed for that from the start, I intend to make no thorough judgment calls on that (though I am very skeptical) because it's irrelevant. You would curse the 313 million citizens of the US to live in a non-government, in complete chaos, for a great portion of their lives solely to accomplish an ideal. You would be ruining their lives simply because you have a different ideal of what constitutes freedom, and I find that terrifying, and am really and honestly quite confused as to why you continually brush that aside.

The proper government from the start is very relevant to me, because an improper government will, eventually, suffer enough reversals through the natural growth of society to put you back at the start. I think that the regulatory system we have is going to eventually get so complicated that it will fall under its own weight. Either it will intrude a bridge too far on people's rights and they'll revolt, or it will stymie progress enough so that other countries with less restrictions will grow faster and be in an advantageous position both militarily and economically against us, or a combination of the two.

So if you're saying, "You can't get there from here," that doesn't preclude A) figuring out where "there" is, and B) trying to move there gradually. If we got to a climate where we were repealing regulations at the same pace we have been passing them, and stripping the governments of powers at the same pace we've been giving it to them, we could get to where I think we ought to be in about the same time as it took us to get here.

"Move it all to the states" is still not a functional rebuttal, because your system would also destroy the infrastructure under which states -- not just the federal government -- are governed. The extent to which things would be moved to the states would have to be such that it would effectively be a return to the articles of confederation, which any student of history will tell you, did not work. It sounds to me what would be ideal for you is just for there to be no federal government, for each of the 50 states to be its own nation; in effect, turning your state government into your federal government. Which I guess is fine, but it's not really ideal for many purposes (economic, military, research, education, culture...). Obviously, moving to new countries is more than a minor hassle (due to actually being a significant hassle, and all that), but I think you'd be best served by one of the smaller European states, or maybe even one of the other, less populous, commonwealth realms (since at least then you wouldn't need a new language). I don't think, just from a realistic standpoint, that you will ever see anything even remotely near the kind of government that you seem to want in the US*.

Well, once at the state level I'll want it pushed down even further to the local level. I forget where I read it, but someone said that the way it should work is that the states handle only what local governments absolutely can't, and the federal government handles only what the states absolutely can't. That's my view of government, or at least of the tiers of it. I think that within that basic structure, there would be enough room for some jurisdictions where the view that Addams just spoke about, of freedom from unnecessary suffering leads to a single-payer health-care system, and also enough room for jurisdictions where health care is completely treated as a commodity and the producers' profit is their sole interest, as well as anything in between.

This isn't about society under control. I will thank you to stop hyperbolically mischaracterizing those you disagree with as some variation of "freedom haters". It's not that one system is more successful than the other, it's that the current system is successful at governing, and your system, while a nice ideal, would not be. I think it's pertinent to point out that, tying in with the below, when you have every freedom, you effectively have no freedoms, as everyone would have the unfettered right to deny you yours.

I didn't mean control as a pejorative, but it is an alternative. Either people are free to get health care, or health care providers are free to make max profit. Either-or. Either property rights are absolute, or we gain the benefits of having certain projects funded by taxes. Either-or. I fully admit that in a society of complete individual freedom, the opportunity costs of our current organized and controlled society would have to be paid. All I'm saying is that in that controlled society, the opportunity costs of individual freedom are paid. If they mean nothing to you, they're not costs. If you don't care about the right to not be part of a health-care plan, you don't see it as a cost to pay. But I do, so I do. I don't care about the right to get health care even if you can't afford it, so when someone points out the X million uninsured people in this country, I don't see that as a cost. But you (or others) do, so you (they) do.

I think your understanding of rights, liberty, and freedom are flawed, however. It based on an ideal of absolute, unfettered rights with no restrictions. That misses that the restrictions that are placed on rights are principally to done to protect against you infringing on the rights of others. Taking the classical example, the abolition of slavery was not about giving the federal government the power to regulate human labor and wages, it was about preventing individuals from taking away the freedom of others. Limitations on free speech, such as slander, libel, fighting words, and so on, are there not to give the government the power to add things to a list of "you can't say this!"; it's to protect others from having their character defaced with lies, from theater goers having their safety impinged by the desire for others to yell "fire!". Restricting false advertising is not about the government taking away the rights to try to sell your product, it's about protecting the rights of the consumer to act on accurate information (an important requirement for free markets!).

And I actually have no problem with fraud-based restrictions (As has been said, it's perfectly legal to shout fire in a crowded theater. . . if there's a fire). But that standard, I think, makes for a very simple and narrow set of restrictions. If one party, knowingly using force or fraud, is the proximate cause of bodily injury or property damage to another, then it is violating the rights of the second party. But that view has lots of qualifications where there is room for argument. If the first party does not have the mens rea, I content no violation takes place, but violations through negligence can be argued. If the first party is the cause-in-fact but not the proximate cause of the injury, I contend no violation takes place, but the point can be argued. If the damage is not to body or property (case in point: hate speech laws like the recent thread of someone being jailed for a racist tweet), I contend no violation takes place, but other people clearly think it has.

It goes on and on: basically all restrictions on your rights are for one (or commonly, both) two things: (1) To protect the rights of others from you, and (2) for the betterment of society as a whole.

Here's what I see as the difference between (1) and (2): The right of another (1) is a necessary and sufficient condition to restrict my rights. The benefit of society (2) is a necessary but not sufficient condition to restrict my rights. To meet sufficiency for (2) it must either be localized so that I can reasonably find a way to regain my rights by altering my locality (example: this is a dry county, but head across the border and drink all you want), or else give me an alternate means to achieve my end (example: you cannot fly your private plane in commercial airspace, but private airspace is right below.)

Putting a national health care mandate into place may or may not benefit society (the doubt is enough for me to want it not done), but the fact that it is national (and there's no means to get a private health care system that isn't competing with a national one in place) and mandatory (I can't find a way to not help others get care), definitely put it in the category of Not Worth the Restriction of Rights.

Edit: Here's another way of saying what I'm saying.
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Re: Supreme court debate Affodable Care Act

Postby Silknor » Sun Apr 01, 2012 3:13 pm UTC

Steroid wrote:No, perfect would be either the widgets not causing the pollution or society not minding the pollution. I think the difference between us is that I think that societies should be allowed to do what the people want, be it pollute or consume or engage in unhealthful behaviors, and that governments are there to make sure that those desires are put into effect efficiently; but you think that societies should make the best decisions to grow and thrive, and that governments should control for that. There's still a lot of my view in the constitution, and in the population in general, though.


Well that would be perfect, but so would being able to change the laws of physics when it suits us (the speed of light being so low is so frustrating!).

I have no idea what you mean by "governments are there to make sure that those decisions are put into effect efficiently." Because it sounds to me like that an exact description of the tax in this hypothetical: the tax allows people to engage in mutually consensual commerce to any degree they like (as opposed to say, banning production of the widget), but requires only that their decisions do not impose costs on others which they do not pay for. Your freedom to make widgets untaxed ends when the byproducts of that production reach my nose/property. It's not "free" commerce for two people to agree that one will build widgets and the other will buy them, and dozens or thousands of other people without a say in the contract just have to put up with the pollution generated. That's forcing them to accept something they never would agree to if given a choice, and when you do that, you lose both the efficiency and freedom of the free market.

Ghostbear wrote: In this case, legal precedents such as Wickard v. Filburn and Gonzales v. Raich would show that this law is valid as per prior legal interpretations of the commerce clause of the constitution. If the SCOTUS wishes to find it unconstitutional, it has to do so objectively within the constraints of those legal precedents, the understood interpretations of the commerce clause and the powers of the federal government.


No, that's not true. For a lower court to find the individual mandate unconstitutional, they have to do that within the bounds of Wickard and Gonzalez and the current understandings of the commerce clause propagated by the Supreme Court. The Supreme Court faces no such bounds, because it can overturn all of those things, in full or in part. While the Supreme Court tries to adhere to stare decisis when possible, it can and does overturn or limit previous rulings when it feels they are not correct interpretations of the Constitution. And if the Court does overturn the individual mandate, it will most likely represent a new bound on the Commerce Clause and previous jurisprudence, just like Lopez.

@omgryebread:
The Commerce Clause wouldn't be relevant to single payer. It would be upheld under the Spending Clause. If Medicare is constitutional, then so is Medicare with a different age restriction, or no age restriction.
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Re: Supreme court debate Affodable Care Act

Postby Zamfir » Sun Apr 01, 2012 3:30 pm UTC

Steroid wrote:Here's what I see as the difference between (1) and (2): The right of another (1) is a necessary and sufficient condition to restrict my rights. The benefit of society (2) is a necessary but not sufficient condition to restrict my rights. To meet sufficiency for (2) it must either be localized so that I can reasonably find a way to regain my rights by altering my locality (example: this is a dry county, but head across the border and drink all you want), or else give me an alternate means to achieve my end (example: you cannot fly your private plane in commercial airspace, but private airspace is right below.)

But in this case, the government wants you to subsidize health care for others if you have enough means to do so. Your 'end' is to escape that burden. There's no way they can give you an 'alternate means to achieve your end', since their goal is in direct conflict with yours.

I can understand that would prefer to live in a country where the government has no legal grounds to pursue such goals. But that country is obviously not the United States. Why should millions of people bow to your desires about government, instead of saying "find some other country, Steroid"?
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Re: Supreme court debate Affodable Care Act

Postby Steroid » Sun Apr 01, 2012 4:37 pm UTC

Silknor wrote:I have no idea what you mean by "governments are there to make sure that those decisions are put into effect efficiently." Because it sounds to me like that an exact description of the tax in this hypothetical: the tax allows people to engage in mutually consensual commerce to any degree they like (as opposed to say, banning production of the widget), but requires only that their decisions do not impose costs on others which they do not pay for. Your freedom to make widgets untaxed ends when the byproducts of that production reach my nose/property. It's not "free" commerce for two people to agree that one will build widgets and the other will buy them, and dozens or thousands of other people without a say in the contract just have to put up with the pollution generated. That's forcing them to accept something they never would agree to if given a choice, and when you do that, you lose both the efficiency and freedom of the free market.

This goes to what I was saying before about proximate cause versus cause-in-fact. If the interaction between A and B puts a cost on C despite neither A nor B directly acting on C, there shouldn't be a government action needed. If, for counterexample the sale of the widget polluted C's water supply alone, then C would have a case for intervention. But if the actual damage can't be traced to both damager and damagee, then it shouldn't, in my view, be in the government's jurisdiction. C has to either eat the costs, or find some way to prevent A and B from taking their action that doesn't involve a forceful intervention, or interrupt the causality so that the action no longer costs him.

Zamfir wrote:But in this case, the government wants you to subsidize health care for others if you have enough means to do so. Your 'end' is to escape that burden. There's no way they can give you an 'alternate means to achieve your end', since their goal is in direct conflict with yours.

I can understand that would prefer to live in a country where the government has no legal grounds to pursue such goals. But that country is obviously not the United States. Why should millions of people bow to your desires about government, instead of saying "find some other country, Steroid"?

Well, it's not "obviously" not the US, since it quite contentious and may even be the case in two months that SCOTUS will strike down the law. But to answer your question, if they do say that and I leave, I'm still not paying for anyone's health care. If they agree and I stay, I'm not paying for anyone's health care. So in neither case do they get the payments they want. Why make the first choice? Out of pure spite?
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Re: Supreme court debate Affodable Care Act

Postby addams » Sun Apr 01, 2012 4:45 pm UTC

Not nice! Telling Steroid to find a different country is not nice.

I have been on the receiving end of those kinds of statements. I can tell you first hand: Not nice!

On the other hand. Steroid my not want his tax money funding medical care for Pregnant people, because, he can't get pregnant.
He may not want his tax money spent on immunizations, because, he thinks that they don't work or cause more illness that they prevent. Very few people alive today remember the fear and heartbreak of of polio, measles, pertussis, and small pox.

He has a right to think that way. Yet; When some EMT finds Steroid still alive with some strange injury, Steroid may find a moment to be grateful for a system that provides care first and goes through his pockets, later.

Oh. Good Grief! Steroid is not one of Those Guys; Is he?
You know. Those Guys. The ones that stand and loudly declare, "I came into this world cold, naked and alone! I will go out of it the same way!" Those Guys.

Yes. I was taught to respond to Those Guys, "You were not alone! At least one woman was with you that day or you would not have made it!" I believe it. He may be big and tough and strong, now. He was some number under 15#'s and wet on that day. Baring sudden disaster, we will each need the help of others as we stumble across the stage of life.

How can a modern human argue against us making the journey as nice for one another as possible?

It is not only our social duty to care for the sick and the elderly and to prevent disease when we can, but, it can be our pleasure. We do not need to provide direct patient care to feel the sense of pride.

It is like the kind of pride people feel in their sports teams, only, better.
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Re: Supreme court debate Affodable Care Act

Postby Triangle_Man » Sun Apr 01, 2012 11:21 pm UTC

Maybe we've reached a point where we think that 'ourself' (the singular person) is the only person who matters.

Maybe we have gotten so stuck in 'ourself' that we've forgotten that we aren't alone.

Maybe we think that we already live in a 'just world' and anyone who is at a disadvantage is simply not working hard enough/doesn't care enough/whatever.

Maybe we believe the first fallacy because we're too scared to consider that the world isn't fair and we could randomly get struck down or held back for randomized, arbitrary and unfair reasons.

Maybe we want to believe in freedom so much that we can't accept anything that could take that away from us, even if it could help everyone in the long run.

I don't know...
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Re: Supreme court debate Affodable Care Act

Postby addams » Mon Apr 02, 2012 6:32 am UTC

Triangle_Man wrote:Maybe we've reached a point where we think that 'ourself' (the singular person) is the only person who matters.

Maybe we have gotten so stuck in 'ourself' that we've forgotten that we aren't alone.

Maybe we think that we already live in a 'just world' and anyone who is at a disadvantage is simply not working hard enough/doesn't care enough/whatever.

Maybe we believe the first fallacy because we're too scared to consider that the world isn't fair and we could randomly get struck down or held back for randomized, arbitrary and unfair reasons.

Maybe we want to believe in freedom so much that we can't accept anything that could take that away from us, even if it could help everyone in the long run.

I don't know...


Yeah. Everything you wrote; And: Maybe we have forgotten the balance of Freedom with Responsibility.
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Re: Supreme court debate Affodable Care Act

Postby Malice » Mon Apr 02, 2012 12:54 pm UTC

Steroid wrote:Putting a national health care mandate into place may or may not benefit society (the doubt is enough for me to want it not done), but the fact that it is national (and there's no means to get a private health care system that isn't competing with a national one in place) and mandatory (I can't find a way to not help others get care), definitely put it in the category of Not Worth the Restriction of Rights.


There won't be an overriding national health care system; the whole point of the mandate is to force you to pay into the private health care system (but the provider is up to you!). If you choose not to pay into the private health care system, you can pay into the national fund via a penalty (a tax, essentially).

"Putting an expansion of the military into place may or may not benefit society, but the fact that it's a national military (and a private militia cannot compete) and mandatory (I can't find a way to not pay taxes on my earnings) definitely put it in the category of Not Worth the Restriction of Rights." Does that still hold water for you? What's the difference?
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Re: Supreme court debate Affodable Care Act

Postby Yakk » Mon Apr 02, 2012 12:57 pm UTC

Steroid wrote:This goes to what I was saying before about proximate cause versus cause-in-fact. If the interaction between A and B puts a cost on C despite neither A nor B directly acting on C, there shouldn't be a government action needed.
To be clear, what you are saying here is that you oppose efficient markets (you don't think free markets should be efficient), and you support the systematic externalization of damages to the weak?

Because that is what you are advocating. Both inefficient markets, and oppression.
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Re: Supreme court debate Affodable Care Act

Postby nitePhyyre » Mon Apr 02, 2012 3:38 pm UTC

Steroid wrote:OK, let's work what I say is a contradiction and see if we can't drill down on it. I'm saying that if society can permissibly mandate broccoli, then it can mandate anything that it finds acceptable to mandate because it is, as you say, a slight disagreement and not an issue of great import. If both the momentous and the trivial have the potential to be properly controlled by society via the government, then there's no activity that must be controlled by the individual who acts in despite of society. And if an individual has no conceptual territory that is his to control and cannot be regulated, then he has no inherent rights, only privileges that exist at the pleasure of society.

So which of those conditionals are you taking issue with?
I've made one mostly inconsequential change. That said, Yes, using that logic individual rights don't exist. As Malice points out, using that logic, anyone can make a claim to anything and ergo therefore rights don't exist.
Spoiler:
Malice wrote:
Steroid wrote:Putting a national health care mandate into place may or may not benefit society (the doubt is enough for me to want it not done), but the fact that it is national (and there's no means to get a private health care system that isn't competing with a national one in place) and mandatory (I can't find a way to not help others get care), definitely put it in the category of Not Worth the Restriction of Rights.
"Putting an expansion of the military into place may or may not benefit society, but the fact that it's a national military (and a private militia cannot compete) and mandatory (I can't find a way to not pay taxes on my earnings) definitely put it in the category of Not Worth the Restriction of Rights."


Steroid wrote:Erase and replace with "individuals" if that helps. Or, if you want it clearer, "toward the government" means "toward making what some (or most) people want the standard for all," and "toward the people" means "toward leaving the standard for each person to pick on his own." And I think that interpretation should always favor the latter.
No you don't. Do you think that it should be left up to individuals whether or not they they follow murder laws? How about leaving it up to each individual as to which property laws they will follow? What about child rape?

Unless you are okay with society allowing murder, rape, and, theft, it isn't a matter of always "leaving the standard for each person to pick on his own". It is simply the things you find reasonable for the individual to decide you want the individual to be able to decide.

Ghostbear wrote:
nitePhyyre wrote:Ghostbear, I've always thought that this was a better example of why a literal interpretation is impossible::
No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President;
Maybe I'm just tired, but I'm not 100% certain I'm seeing the literal difficulty there. Is it the "at the time of the Adoption of this Constitution" part?
Steroid wrote:Why is that impossible? Because of the second comma, which is saying that natural born citizens have to be so at the time of the adoption?
Yeah, the comma between 'of the United States' and 'at the time' makes 'at the time...' attach to both antecedents.

Steroid wrote:Why is that impossible? Because of the second comma, which is saying that natural born citizens have to be so at the time of the adoption? OK, here's why I think literalism can hold here: A) this is procedural, talking about qualifications for president, so a freer standard of interpretation can be allowed....
There goes the strict literalism that you were so keen on.
Steroid wrote:... If the government wants to play fast and loose with who it puts in the White House, that's fine. But if it read, "No person except. . . shall be eligible to own property," then I would argue that the ambiguity should be resolved toward the people and we'd say that the first part applies to citizens now. B) If that ambiguity does exist and has a chance to be interpreted as saying that you had to be alive at the time of the adoption to be president, then amend it to strike the comma. That's a simple amendment that shouldn't have trouble passing muster.
There is nothing functionally impossible with strict literalism when using a loose and fluid document. There is nothing functionally impossible with loose and fluid literalism when using a strict document. I can't begin to tell you which route is better, I really don't know. Things only get impossible when using a strict interpretation AND a strict document. This is doubly true when the document in question wasn't designed to be taken word-for-word but was designed to be taken in spirit.

The whole point that got us on this tangent, was that you didn't think anything less than a strict literal interpretations would be able to protect your freedoms. It might not. But, will it be any better when your freedoms can be rewritten or deleted on a whim?


Ghostbear wrote:
omgryebread wrote:
nitePhyyre wrote:On a different side note: If the ACA hadn't tried to make a compromise and just went with a regular civilized healthcare system, would there be any constitutional complaints?
You could possibly argue that it doesn't fall under Congress's enumerated powers. This would involve a rather narrow view of the Commerce Clause and the Necessary and Proper clause. Given the expansive view the court has taken of those two, it would be a very hard sell. This is a conservative court, but I'd find it difficult to believe that they wouldn't vote to uphold.
I'm not sure how a socialized healthcare would need to fall under those clauses? There'd already be precedent for them through medicare, medicaid, and social security already being found to be constitutional. Actually, couldn't a universal healthcare system be implemented relatively easily and practically by just expanding medicare to cover everybody? The program is already legal, so expanding it to cover more people should be legal as well. I don't think a properly implemented setup would encounter any constitutional challenges that had any teeth to them.
Let's assume for a moment that ACA gets struckdown, but an expansion of medicare wouldn't. (That seems to be the way things are leaning) I find it fascinating that congress looked at single payer, civilized healthcare and said "If we did that, government would be overstepping its bounds, a mandate is less drastic." Whereas the courts may say "A mandate is government overstepping its bounds, medicare is less drastic." Really goes to show that the two bodies are serving different masters.

Steroid wrote:still unpopular
Without a breakdown as to WHY people don't like it, that stat is meaningless. They could very well dislike the ACA because it doesn't go far enough.
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Re: Supreme court debate Affodable Care Act

Postby addams » Mon Apr 02, 2012 4:42 pm UTC

nitePhyyre wrote:
"Without a breakdown as to WHY people don't like it, that stat is meaningless. They could very well dislike the ACA because it doesn't go far enough."


To this I say, "Amen."
I am in the camp that say, 'Agents of the government can provide excellent medical care.'

Of course, CEOs and lobbyists for insurance companies may be out of jobs. They can retrain as phlebotomists. Their blood sucking skills could be put to a practical use.
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Re: Supreme court debate Affodable Care Act

Postby Steroid » Mon Apr 02, 2012 9:13 pm UTC

Malice wrote:There won't be an overriding national health care system; the whole point of the mandate is to force you to pay into the private health care system (but the provider is up to you!). If you choose not to pay into the private health care system, you can pay into the national fund via a penalty (a tax, essentially).

"Putting an expansion of the military into place may or may not benefit society, but the fact that it's a national military (and a private militia cannot compete) and mandatory (I can't find a way to not pay taxes on my earnings) definitely put it in the category of Not Worth the Restriction of Rights." Does that still hold water for you? What's the difference?

Sure. I think that people who want out of paying for the military should be able to do that too. I'm quite willing to pay for the military, but if someone says that they want a tax refund based on their share, I'm for it.

Also, part of the legal debate is that while the penalty is a tax "essentially," it's not a tax explicitly, which may be enough to disqualify it. Nominally, that's because the tax power is run differently from the penalty-for-failure-to-obey-a-law power, practically it's because the people might have a very different reaction to a tax than to a mandate.

Yakk wrote:
Steroid wrote:This goes to what I was saying before about proximate cause versus cause-in-fact. If the interaction between A and B puts a cost on C despite neither A nor B directly acting on C, there shouldn't be a government action needed.
To be clear, what you are saying here is that you oppose efficient markets (you don't think free markets should be efficient), and you support the systematic externalization of damages to the weak?

Because that is what you are advocating. Both inefficient markets, and oppression.

I'm not sure how you determine that that is inefficient. I think free markets should follow the actions of the marketers. If they act efficiently, the market will be efficient. If not, not.

As to the second, the weak don't have an automatic claim to be strengthened. If they're so weak that they can't divorce themselves from the private market transactions of others to have a place to stand and take their own actions, I've no sympathy for them.

nitePhyyre wrote:
Steroid wrote:OK, let's work what I say is a contradiction and see if we can't drill down on it. I'm saying that if society can permissibly mandate broccoli, then it can mandate anything that it finds acceptable to mandate because it is, as you say, a slight disagreement and not an issue of great import. If both the momentous and the trivial have the potential to be properly controlled by society via the government, then there's no activity that must be controlled by the individual who acts in despite of society. And if an individual has no conceptual territory that is his to control and cannot be regulated, then he has no inherent rights, only privileges that exist at the pleasure of society.

So which of those conditionals are you taking issue with?
I've made one mostly inconsequential change. That said, Yes, using that logic individual rights don't exist. As Malice points out, using that logic, anyone can make a claim to anything and ergo therefore rights don't exist.


And I'm fine with that. Compulsion should be as little a part of human life as possible.

No you don't. Do you think that it should be left up to individuals whether or not they they follow murder laws? How about leaving it up to each individual as to which property laws they will follow? What about child rape?

Unless you are okay with society allowing murder, rape, and, theft, it isn't a matter of always "leaving the standard for each person to pick on his own". It is simply the things you find reasonable for the individual to decide you want the individual to be able to decide.

I feel like I've gone over this before, but I'll do it again. Everything should be met in kind. If one person murders another, he's forfeited his right to not have another murder him. If one person takes the property of another, he's forfeited his right to not have another take his property. But, if one person declines to pool healthcare costs with another, all he's forfeited is his right to not have another decline to pool healthcare costs with him. (Or, since that's a double negative, I could say it as, "he's forfeited his right to force another to pool healthcare costs).

There is nothing functionally impossible with strict literalism when using a loose and fluid document. There is nothing functionally impossible with loose and fluid literalism when using a strict document. I can't begin to tell you which route is better, I really don't know. Things only get impossible when using a strict interpretation AND a strict document. This is doubly true when the document in question wasn't designed to be taken word-for-word but was designed to be taken in spirit.

But again, if your goal is to limit the functions of the body doing the interpreting, to have a fail-safe system, then strict interpretation of strict documentation can work.

The whole point that got us on this tangent, was that you didn't think anything less than a strict literal interpretations would be able to protect your freedoms. It might not. But, will it be any better when your freedoms can be rewritten or deleted on a whim?

You're completely discounting the possibility of small, limited government. A "never govern unless you absolutely have to" policy. I base this on a belief that the problems of too much government are always worse than the problems of not enough government, so we shouldn't countenance government unless it's not going to cause problems (as in my murder/theft points above).

Let's assume for a moment that ACA gets struckdown, but an expansion of medicare wouldn't. (That seems to be the way things are leaning) I find it fascinating that congress looked at single payer, civilized healthcare and said "If we did that, government would be overstepping its bounds, a mandate is less drastic." Whereas the courts may say "A mandate is government overstepping its bounds, medicare is less drastic." Really goes to show that the two bodies are serving different masters.

Which again is not a bad thing if it causes gridlock instead of bad law.

Steroid wrote:still unpopular
Without a breakdown as to WHY people don't like it, that stat is meaningless. They could very well dislike the ACA because it doesn't go far enough.

That's quite possible. It's also possible that, when a poll came out about people being against don't-ask-don't-tell, that they were in favor of, "ask, and if they answer that they're homosexual, kick them out." But neither that nor this is a conventional answer to the question.
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Re: Supreme court debate Affodable Care Act

Postby Silknor » Mon Apr 02, 2012 9:38 pm UTC

Steroid wrote:
Steroid wrote:still unpopular
Without a breakdown as to WHY people don't like it, that stat is meaningless. They could very well dislike the ACA because it doesn't go far enough.

That's quite possible. It's also possible that, when a poll came out about people being against don't-ask-don't-tell, that they were in favor of, "ask, and if they answer that they're homosexual, kick them out." But neither that nor this is a conventional answer to the question.


A Reuters poll released last week wrote:The poll found that 44 percent of respondents favor the law, and that an additional 21 percent oppose it because it doesn't go far enough - for a total of 65 percent.

The rest, 35 percent, said they oppose the law and major changes to healthcare generally.


A Pew poll from early March wrote:Pew Research (3/7-11, n=1,503): What, if anything, do you think Congress should do with the health care law? Expand it. Leave it as is. Repeal it.
38% repeal
20% leave as is
33% expand
9% unsure


It's likely of course that a good portion of the disapprove because it doesn't go far enough crowd wants a public option or single-payer, which to some extent isn't going farther so much as it's a completely different approach. But it's also likely a good portion of that crowd prefer the law to the pre-ACA status quo. Either way, the implication that only a tiny fraction of Americans who oppose the law do so because it doesn't go far enough is inaccurate.
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Re: Supreme court debate Affodable Care Act

Postby Griffin » Mon Apr 02, 2012 9:42 pm UTC

Ninja. :/

He said the same thing I was about to but with better sources.
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