


Umpire of liberty


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I think this whole affair is the classic "means" vs "end" argument. We hope that everyone wants the end - affordable healthcare for all (despite overwhelming evidence to the contrary as far as Republicans are concerned). The means is what is in question here.

I should parenthesize that it is a clever over-extension to allege that one is against universal healthcare (the end) because one is against the ACA/Obamacare (a means). That argument appears to be based on mere partisanship and has little to do with ideology. Fixing healthcare in America must be done, but it must be done in a way that adheres to the principles of the American Constitution.

I posit that the means in this case does NOT justify the end. I personally think that it is wrong to force anybody to buy anything, ESPECIALLY from a private enterprise. I think that it gives unfair advantage to that enterprise/those enterprises. I also think that it sets dangerous precedent for future, unforeseen "must-buys". That's the problem with the ACA.

The solution, in my view, is a single-payer system.

I hope I have stuck to the "how" and not the "what".

Thatseasy in reply to Chrenyan

"I think this whole affair is the classic "means" vs "end" argument.We hope that everyone wants the end"

The problem with that is that there will be no way of distinguishing "THIS end" to the "NEXT end" as for the concept of values, morals, etc, vary largely from side to side of the cultural, economical, religious, etc, spectrum.

And easier way of explaining (and applying) this is using the basic point blank differences between right and left:

To the right, a "fair price" is defined by what is agreed to by 2 consenting parties in an open market.

Warning: If you “agree and supply” more frequently than others you may end up in that now-infamous group called the “1%" like Bill Gates.

To the left, a "fair price" is whatever produces a desired outcome.

Warning: “whatever” may include, among other side effects, infringement of individual rights, vandalism of private property, disregard of religious rights and censoring of the opposition’s press. Most severe cases may include use of force and elimination of suffrage.

So you see, the "end justifies the means" way of thinking, opens all kind of can of worms... It's just too risky.

Chrenyan in reply to Thatseasy

I certainly agree that in the larger interests of precedent, the end becomes important - not this end, but ends in general.
But I also think that one should only begin to ask whether ANY end would justify this means (forced purchase), when one has concluded that THIS end justifies this means. If this means is wrong, even for this noble end, then end becomes in a sense immaterial.

Thatseasy in reply to Chrenyan

After I re-read you post, I realized you mentioned the mandate as a "mean" and that the end should be "healthcare for all".

I guess there are many ways of looking at this, even those "ends" can vary. For instance, my "end" would be, "healthcare for all" not by making it "free for all", but by providing (constituional) measurements that make it "available for all".

In my case, I want everybody to have access to PRIVATE healthcare VIA available purchasing power - in other words, I want everybody to have the money to pay for it. Why? because I am a capitalist, and I believe in the private sector by far more than I believe in the public one. I believe that doctors and private institution are doing their work for both 'love to their proffesions' AND profits.

I believe a hospital and a doctor is more willing to provide QUALITY service when they get their own incentives for doing that that when is forced on them. Same goes to the Pharmacos. In their effort to compete in a free market, they sure invest lost of money in research. The profits go to them, but the benefits go to the patient that ultimately gets the best final products.

Others instead think that a single payer does the trick. I understand and respect that position; but I think the risk is losing US supremacy in medical technology and research and quality. Kind of like the hated "trickle down economics"; but sure thing, eventually (and sooner than later) gets there (like cellphones, wifi and flat tvs).

In short, I have no problems to finding solutions to the 10 or 20% of the population that HAVE problems. But I think it shouldnt come at the expense of degrading those who has good quality care. Our goal should be to bring the 'lessers' to the "besters' levels, not the other way around.

But again, that's the Capitalistic Free Marketeer in me.

Chrenyan in reply to Thatseasy

A lot of the problem is a topsy-turvy sentence in my first post that says "the means does not justify the end". I should restate that to say "the end does not justify the means".
Valid point about whether it is worth degrading the whole of healthcare by making it affordable. Nothing to add on that! I'm not sure that conundrum can be solved without making those who can afford to pay for the "10% or 20%" but also for additional and better services for themselves, something that might raise hackles.

Glass Half Full

Conceit? Although to be expected from a news magazine that endorsed the currently sitting President, do you have a better system in mind to balance power held by the people?


Central Banker Says... With Obama we have succeeded in appointing a President more profitable than even Nixon ever was & re-elected he shall be.


"I don't give a da-n what the charge is. Just tell me who the judge is."- Roy Cohn, aide to U.S. Senator Joseph McCarthy


In the United States, we are legally penalized if we don't have car insurance and get into an accident. I don't see how health care is any different (unless the car insurance legislation is run differently by every state in the union). We already mandate car insurance, even though not everyone gets into car accidents. Why should health care mandates be considered tyrannical when we mandate car insurance, or other kinds of insurance?

EricBro in reply to Rabbiteconomist

In the car case, people can choose not to drive and would be exempt from buying insurance. I know several people that don't have a license and don't have insurance. In the health case, anyone who is alive would be mandated to buy it. No way out save death.

That doesn't seem different in your eyes?

And unless you are responding to people's prior comments, the supreme court isn't deciding whether it's tyrannical or not, merely whether our founding document gives that particular power to the federal government. If not and we (the people) think it should, we can always change the consitution and pass the law again. If there's enough support for it...

Rabbiteconomist in reply to EricBro

I was replying to other comments in general. Regards to exempting, you raise a good point. But using your logic, if we can do that with car insurance, it seems that you could do the same with health insurance, or just not use health care at all and be off the grid the same way. But, it's not my decision. The supreme court will decide if health care is a social contract or not. If not, then the people as you say will have to determine that for themselves.

MollyAnn in reply to Rabbiteconomist

1. Car insurance is optional and only required if CHOOSE to own a car and CHOOSE to drive it on public roads. You can have a license, ride in a car, drive it around your farm, all without car insurance. You don't need car insurance because it is likely that one day most people will be in a fender bender. Thousands (perhaps millions) don't have car insurance.

2. You are only required to have insurance for damage to someone else's property. Coverage for yourself is optional.

3. Probably the most important point: car insurance is mandated for the specific conditions above at the state level. Under the constitution, states can do most anything they want, but the powers of the federal government are purposely limited.

Paul Marks

Almost needless to say - the high price of American health cover and care is due to previous government interventions (both subsidy programs such as Medicare and Medicaid - which have a similar cost inflating effect that government subsidies for higher education have on tuition fees, and the endless tide of mandates and other regulations). And "Obamacare" will INCREASE costs still further - pushing genuinely indepedent health care out of the reach of most people - leaving them dependent on "crony capitalist" providers (till the government chooses to turn on them at a later point - as it did with the student loan providers).

However, the harmful nature of the "Affordable Healthcare Act" is not for the Supreme Court to decide - only its lack of Constitutional basis.

This is (although Lexington, being what he is, well never understand this) NOTHING TO DO WITH POLITICS.

For example, the Post Office is an utterly wrongheaded idea - the government is no good at delivering letters and should not do so. BUT "a post office and post roads" is specifically mentioned in Article One, Section Eight so the Congress CAN (if it wishes) set up and maintain a Post Office.

A Justice should therefore UPHOLD the Constitutionality of the Post Office for the same reason that the same Justice should strike down Obamacare.

It is nothing to do with them bein harmful - both things are harmful. What matters is that one of them is covered by Article One, Section Eight of the Constitution of the United States and the other is not.


Lexington mentions various historical matters.

He mentions the Presidential election of 2000.

Even the New York Times (eventually) admitted that Bush won Florida. So how can you raise this again?

You also mention the New Deal.

Sadly the Supreme Court (contrary to what you imply) did NOT overturn parts of it that were clearly unconstitutional.

For example, privately owned gold was stolen in 1933 and private contract "gold clauses" were voided.

The Federal government has no Constitutional power to do these things - yet five of the nine Justices refused to strike down these blatently uncontitutional actions.

What the Supreme Court did strike down was the National Recovery Administation.

This agency (under the generalized "Enabling Act" that was the National Industrial Recovery Act) tried to pass regulations, with the force of law, covering every aspect of American economic life.

Even if such regulations were Constitutional (which they were not) they should have been debated and passed by the legislative branch (the Congress) not the executive branch - the role of Congress is not (under the Constitution) to say "oh mighty Executive branch - pass whatever laws you like", it is to debate and pass (or not pass) those measures itself.

For all Franklin Roosevelt's talk of a "horse and buggy view of legislation" (much like his kinsmen "Teddy" Roosevelt - with his contempt for the Constitution of the United States and love for unlimited "Progressive" government on the lines suggested by German collectivists) this is the view of legislation in the Constitution of the United States.

If you do not like the Constitution of the United States - then write a new one, or amend it.

Do not IGNORE the Constitution by "interpreting" it out of existance.

Also (as Lexington should be aware) the things that the Supreme Court struck down in the 1930s were based on the practices of Fascist Italy.

Are you really saying that Fascism (the NIRA - National Recovery Administation stuff) is compatible with the United States Constitution?

Or that you do not care whether it is or not?

Go for a long trip into the country Lexington.

Have a walk in the mountains and clear your thoughts.

Paul Marks

I notice that the left comment Comrades are out in force - smearing indivduals such as Justice Thomas (why is that not racist?), and pretending that the government mandating a healthy diet (such as eating broccoli) is someone "not" the same as making people buy health insurance.

However, one could spend one's life replying to the collectivist hive mind that is the left comment Comrades - the universities (the very universities that the Economist magazine praises as so good) mass produce them. Hopefully real life may one day get them to doubt the collectivist ideology they have been taught (at school, in college, and via the "mainstream" media), but I do not know whether that will happen or not.

I am more interested in the article itself.

As Lexington rightly says the Supreme Court is the umpire of "liberty" not democracy (although some people, such as former President George Bush sometimes confuse the two - which is why he thought that bringing democracy to places like Iraq was bringing "liberty" or "freedom" to such places).

As the United States is not, and was never intended to be, a democracy neither the passing of the "Affordable Healthcare Act" by Congress (with various Congressmen and Senators getting favours for voting for a Bill they had not even read) or the fact that the vast majority of Americans oppose this measure, is relevant.

All that is relevant is whether or not the Act is Constitutional - whether the limited powers granted to the Federal governmnent by the specific provisions of Section Eight, Article One of the Constution of the United States cover forcing people to buy health cover.

They do not do so - so the measure fails the Constitutional test, anbd the Act is (therefore) null and void.


I agree that forcing someone to buy a product is constitutional.
Therefore, the government should take control of healthcare.

Libertarius in reply to Imhere

and where exactly in the history of U.S. Constitutional law can you point to the source of such power? surely not the constitution itself. nor anywhere, in any majority opinion, in any case. But I'm glad to entertain your efforts to do so.

Imhere in reply to Libertarius

So are Medicare and Medicaid unconstitutional? Because what I'm talking about is simply extending them to everyone. The government doesn't necessarily have to nationalize hospital, but pay for everything (like it does in Canada).

EricBro in reply to Imhere

So are you arguing that this particular law is constitutional? Or merely that the government should provide health care to all? I'm sure there are ways which the government could have done this that would have been consitutional (though not necessarily a good idea). But this particular one seems to strike new ground and like Libertarius said, it's a bit of a stretch to find prior support for it in our body of law.


I'd say that there is more than two poles in the political map of America. I'd say there are four.

For there is the American conservative (read: classic Liberal) and the American liberal (read: progressive) poles. But there is also the individualist and statist poles, as well.

And the biggest problem in America right now (in my view) is that both parties are increasingly statist is their views. More and more issues are being immediately brought to the Federal level of government, instead of staying at the lowest level necessary to resolve it.

Pdoe in reply to gogogodzilla

I left England at the age of 28 in 1976, and moved to the US. I thought the future of the UK would resemble the US. Now the issue is reversed. The US has a government with people in it (Obama, Pelosi etc) who would fit very nicely in the Labour governments of the 60's and 70's. The same Nanny State thinking that came to its zenith with the Blair/Brown years. I hope this is not the future of the US. Statism is stifling.


The failure of Justice Thomas to recuse himself given that his wife advertised herself as a lobbyist against health care reform and his failure to disclose her receipt of $686,589 from the Heritage Foundation is not only a conflict of interest but also raises the question whether she lobbyied the other justices given their frequent use of the Tea Party talking points. We need an independent counsel to investigate the potential wrong-doing. Justice Kagan, on the other hand, although having written opinions about health care did not receive money or act as a lobbyist for any partisan group.


One blogger wanted to know what exactly is spewing out of Houston, Texas? Search for ExtraTeraistrial Inteligence! I appologise if riddles get confusing. I have know choice.


The bookKeeper should never have contact with green-back currency. Of course Lady Justice is blind, but could somebody please explain the sword in her hand. I have an Associates Degree in Accounting. Just because at the present time I can't employ myself doesn't stop myself from being a Professional.


Outrageous that Mr. Stevens dared to retire when he was merely 90 years old. Quite obviously it was an evil plot by Obama.


"America has a polarised Supreme Court"
In contrast to England & Wales whose Supreme Court is uniformly of the cultural marxist variety. And of course unelected


The 80's arguement against European MediCaid is that USA pivate major medical provides the best health care on Earth and we do not want damage the best health care in the known Universe. There is no reason why we cannot have a hybrid system: business and individual both will have tax deductions for privite major medical expenses [both would be on the co-pay Aflac contract]--encoraging people to opt out of tax subsidized MediCare. The new arguement is Justice Scalia's question is if we force people to their ability to pay according to their bracketed income means into FICA, can we force them to buy healthy raw brocoli and spinach dip. Everyone is already a vegitarian, we have all been already eating the brocoli-care since you were born in the hospital.

What kind of umpire would base his decicisis on the merits of the case: did the throw beat the runer, and did the pitcher have his foot on first base--the Right Honorable Umpire Kenedy! The politically corect way to do it with the Dekenger Court would use this logic: that because the Umpire was appointed by the Comissioner of BaseBall who has roots in Cooperstown, New York; the Umpire should always make the ruling in the favor of the Royals. I got this RomneyCare law through on Obama's subprime coatTails, and I do not think I can clear the PhilaBuster again. If you give too much information to the IRS when answering questions, your CPA would kick you in the shins under the table.


That well-known quote by Roberts was disingenuous when uttered, as his subsequent opinions have shown.

dslaby in reply to GH1618

The Supreme Court quickly identified that the litigants were Republican govenors - which may weigh in on how they will assess the political consequences of their decision.


All that said, if you want harmony you're better off in China.

Connect The Dots

The most controversial and critical decisions of America lie with only ONE Supreme Court Justice.

Anthony Kennedy may be the most important Kennedy in history.


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