The healthcare law is before the
Supreme Court (ruling expected in June) and if you thought that the most distressing thing
that's come out of this is that (according to Justice Scalia and
others) the justices have no intention of reading the law they are
tasked with determining the constitutionality of, Justice Scalia managed to put that to rest when
he asked, “If the government can do this, what can't it do?” and
in so doing demonstrated that he hasn't read the Constitution of the
United States.
I am not a Supreme Court justice. I am
not paid to understand the Constitution. I am not paid to understand
the law. Actually, right now, I'm not paid at all. I have not
received training in any relevant area. And yet I know enough to
recognize that as a very dumb question.
First off, an exhaustive list of
everything that the government cannot do would take forever. Quite
possibily literally forever. There are things that the government
cannot do that haven't even been thought of yet, and to answer the
question one would have to think of and state them. As time went on reciting that list new avenues of possibility would open up creating ever more things that the government cannot do.
Second, there's no reason for the
second part of that sentence. You know, the question part. “If
the government can do this,” then Scalia is obligated to vote not
to strike down the law. If the government can't then he is obligated
to strike down the law. Full stop. There's no wiggle room, the only
question is whether or not the government can. If the answer to,
“What can't it do?” has any bearing on Scalia's decision then it
means Scalia is not doing his job. At all. He's not even pretending
to do his job.
Third, and this is where we get to the
bit about the Constitution, there are in fact lists of things that
the government can't do if it can do this that were written quite
some time ago and are still in use today.
As with many Americans, I know more
about the first ten amendments to the Constitution than I know about
the rest of the document combined. So here is a quick list of
answers to Scalia's question from there:
If the government can require people
who are guaranteed emergency healthcare to pay for health insurance,
it cannot establish a religion.
If the government can require people
who are guaranteed emergency healthcare to pay for health insurance,
it cannot prohibit the free exercise of religion.
If the government can require people
who are guaranteed emergency healthcare to pay for health insurance,
it cannot abridge the freedom of speech.
If the government can require people
who are guaranteed emergency healthcare to pay for health insurance,
it cannot abridge the freedom of the press.
If the government can require people
who are guaranteed emergency healthcare to pay for health insurance,
it cannot abridge the right of people to peaceably assemble.
If the government can require people
who are guaranteed emergency healthcare to pay for health insurance,
it cannot abridge the right to petition the Government for a redress
of grievances.
If the government can require people
who are guaranteed emergency healthcare to pay for health insurance
then, a well-regulated militia, being necessary to the security of a
free State, it cannot infringe the right of the people to keep and
bear arms.
If the government can require people
who are guaranteed emergency healthcare to pay for health insurance,
it cannot quarter soldiers in any house without the consent of the
owner in time of peace.
If the government can require people
who are guaranteed emergency healthcare to pay for health insurance,
it cannot quarter soldiers in any house in time of war without the conscent of the
owner except in a manner prescribed by law.
If the government can require people
who are guaranteed emergency healthcare to pay for health insurance,
it cannot violate the right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches
and seizures
If the government can require people
who are guaranteed emergency healthcare to pay for health insurance,
it cannot offer warrants except on probable cause, supported by oath
or affirmation, and particularly describing the place to be searched,
and the persons or things to be seized.
If the government can require people
who are guaranteed emergency healthcare to pay for health insurance,
it cannot hold a person to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand
Jury, except in cases arising in the land or naval forces, or in the
militia, when in actual service in time of war or public danger.
If the government can require people
who are guaranteed emergency healthcare to pay for health insurance,
it cannot subject any person for the same offense to be twice put in
jeopardy of life or limb.
If the government can require people
who are guaranteed emergency healthcare to pay for health insurance,
it cannot compel anyone in any criminal case to be a witness
against themselves
If the government can require people
who are guaranteed emergency healthcare to pay for health insurance,
it cannot deprive people of life, liberty, or property, without due
process of law.
If the government can require people
who are guaranteed emergency healthcare to pay for health insurance,
it cannot take private property for public use without just
compensation.
If the government can require people
who are guaranteed emergency healthcare to pay for health insurance,
it cannot require excessive bail nor impose excessive fines, nor
inflict cruel and unusual punishments.
For the record, Scalia has implied that
being expected to do his job constitutes a cruel and unusual
punishment. I wish I were making that up.
I left some things out because I have a
headache and wasn't in a mood to do severe rephrasing. Even though
he made reference to one the things I just listed, Scalia didn't seem
to understand that the government couldn't do it if it could require
people who are guaranteed emergency healthcare to pay for health
insurance. Meaning that Scalia doesn't know how the Bill of Rights
works. He has enough pop culture osmosis to make a joke about the
eighth amendment, but he doesn't actually know enough about the
eighth amendment to realize that it says, in no uncertain terms, that
if the government can do this (“this” here meaning, “require
people who are guaranteed emergency healthcare to pay for health
insurance,”) it can't inflict cruel and unusual punishment on
people.
Now what I picked didn't have to be the Bill of Rights. I know, for example, that if the government can
require people who are guaranteed emergency healthcare to pay for
health insurance, it can't impose an ex post facto law. A quick
check tells me that that's in Article I, Section 9 of the United
States Constitution. Which tells me that Justice Scalia is not
familiar with Article I, Section 9 of the United States Constitution.
Here are a handful of other things he
doesn't know about that section:
If the government can require people
who are guaranteed emergency healthcare to pay for health insurance,
it can't suspend the privilege of the Writ of Habeas Corpus, unless
when in Cases or Rebellion or Invasion the public Safety may require
it.
If the government can require people
who are guaranteed emergency healthcare to pay for health insurance,
it can't pass a Bill of Attainder.
If the government can require people
who are guaranteed emergency healthcare to pay for health insurance,
it can't grant titles of nobility.
-
Here's another one that I don't have to look
up:
If the government can require people
who are guaranteed emergency healthcare to pay for health insurance,
it can't have a president who is younger than 35.
One could go on for quite some time
with things that the government can't do if it can do this. In
addition to the constitution itself there are more than two centuries
of laws and court decisions talking about what the government can't
do. Scalia, evidently, doesn't know about any of them.
-
I want to be clear that I do not fault
him for wondering what the consequences of the precedent that will be
set might be. That's natural. It makes sense to ask what the
implications of this would be. But he didn't ask what new
possibilities would be opened up if the government could do this.
His question wasn't, “If the government can do this what other
similar things might it also be able to do?” he asked what, if
anything, would be outside of the realm of legality if this one
narrow rule were found constitutional and in so doing indicated that
he doesn't know the answer. Any American school child could have answered it
for him.
Starting from the most fundamental, and working outward to the most obscure, how long would it take before someone trying to honestly answer Scalia's question reached something with actual bearing on the case? If the government can do this, it can't force us to pray to the flying spaghetti monster, this is an accurate answer to Scalia's question, and like almost (but not quite) every valid answer to his question it has nothing to do with health care or commerce. It matters to the case how?
If Scalia had even an inkling of the answer he should have asked a more specific question, because the answer to the question that he did ask is simply too long to recite in court.
The government may not always live up
to the ideal of not doing what it legally can't do, but the fact that
Scalia doesn't know such a category of things exists, beyond those few
things that would be affected by the legality of a health insurance
mandate, is disturbing. It implies he has no idea that there's a
Constitution out there that he could read and use to judge the
constitutionality of the law in question. It implies that he's never
considered doing his job.
Well, there is another possibility.
It's possible that Scalia is not, in
fact, ignorant of the Constitution, its amendments, and more than
two hundred years of laws and rulings. It is possible that he
actually does know that these things exist and has a more than
passing familiarity with what they say. But that would mean that he
is dishonestly pretending that he doesn't know about these things in
order to use the Supreme Court to score political points. It would
mean that he's debasing the institution and refusing to do his job.
In short, it would mean that he's a total asshole.
I can think of nothing useful to add, you've covered it nicely. Allow me to give you a virtual high five instead.
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