“If the government can do this, what can't it do?”

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.

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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.

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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.