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August 29, 2010

The Commerce Clause -- A conduit for state power

Posted by Tom at August 29, 2010 12:01 AM |


Although this Reason video doesn't explicitly show it, it's clear that Mr. Chemerinsky, like most progressives, views the electoral process as sufficient to control the state. I suspect Reason edited around that because they didn't want this piece to be called anti-democratic.

It seems obvious to me that the vote is all we have to protect us from the government, which is fine as long as you're not part of an unpopular minority group. If you are or could become part of an unpopular minority group, it's just a matter of time until your number's up. The battle Reason's trying to fight is long, long lost.

Posted by: Kevin Author Profile Page at August 29, 2010 2:38 PM

Thanks for that comment. It made me realize why the left see's Sarah Palin as such a threat. They don't want to have to rely on the Constitution to protect the little guy. They are so afraid of having religion stuffed down their throats. Maybe someone will figure out how to do it with the Commerce Clause.

Posted by: SR Author Profile Page at August 29, 2010 6:43 PM

SR, to be sure, the left is willing to cling to the Constitution as a last resort when it finds itself in the minority. I suppose it's not too different from the right in this respect, but the right doesn't rely on the vote in its rhetoric the way Mr. Chemerinsky and Elena Kagan do.

The best example of a left-wing appeal to Constitutional protections I can think of is the view that the Constitution prevents not only Congress but also the states from outlawing abortion. Squaring the arguments for the Constitution's protection of abortion and its permission of any number of laws, not least Obamacare, requires an intellect on the level of Mr. Chemerinsky.

Posted by: Kevin Author Profile Page at August 29, 2010 9:30 PM

What disturbs me most about "Obamacare" and the question of constitutionality is the real motive of those who claim it unconstitutional. I suggest all should have a look back the 1994 Nickel-Stearns Consumer Choice Health Security Act (HR 3698) sponsored by the likes of DeLay, Gingrich, and Armey and based on policy papers from the Heritage Foundation. This bill was the Republican response to Hilarycare and sought universal coverage through an individual mandate--those who did not buy private insurance would be automatically enrolled in a state program. Very interesting reading, really--a mandate for universal coverage, minimum coverage requirements, government monitoring, electronic record keeping, etc--all very familiar, so much so that in a academic setting, one might claim "Obamacare" was plagiarized from this bill. I don't recall Republicans raising any constitutionality issues back then.

In a 1994 paper tilted "Personal Freedom, Responsibility, And Mandates, "Robert Moffit of the Heritage Foundation wrote, "Absent a specific mandate for at least catastrophic health insurance coverage, some persons, even with the availability of tax credits to offset their costs, will deliberately take advantage of their fellow citizens by not protecting themselves or their families...An individual mandate for insurance, then, is not simply to assure other people protection from the ravages of a serious illness, however socially desirable that may be; it is also to protect ourselves. Such self-protection is justified within the context of individual freedom..."

So how did good conservative/Republican policy become a socialist/liberal nightmare in sixteen short years?

I don't doubt there is a constitutional issue at hand here, I just doubt that many of the current questioners really have protection of the Constitution in mind--they are simply intent on doing anything they can to thwart Mr. Obama and the Democrats. I find that more than a bit disingenuous.

Posted by: Author Profile Page at August 30, 2010 9:53 AM

Obviously, if the intentions of some or the record of the Republican party had any relevance to the issue, would have a point.

Posted by: Kevin Author Profile Page at August 30, 2010 9:20 PM

Kevin, historically speaking the individual mandate and much of what is included in the ACA (Obamacare) is not a left-wing notion--it's true genesis, as I said is found in Heritage Foundation position papers. I'd suggest reading the paper quoted above or Nickel Stearns itself before you determinine whether my comment (actually not originally directed toward you) is pointless.

Individual mandate, community rating, guaranteed issue and on down the list--none of this is new. (Community rating was traditionally shunned by democrats who believed it would create racial bias).

So the point, Kevin, is that if the public knew this real history behind the ACA there would be no great debate as to it's constitutionality and it wouldn't be a major issue going into the fall elections. Certainly you'd get debate over at Cato and libertarian-leaning blogs like this one, but no offense to Tom, there is a difference you know.

Posted by: Rich Prezioso Author Profile Page at August 31, 2010 1:45 PM

PS I'm not sure what that Google thing was

Posted by: Rich Prezioso Author Profile Page at August 31, 2010 1:45 PM

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