You Figure It Out

You Figure It Out

by digby

..because I can’t. Here’s a diary from Red State this week, discussing a post of mine:

Hullabaloo, a Liberal blog, posted a little gem: ”There were no MRIs in 1780.”

Ignoring the fact that the United States had not yet forced Cornwallis’ surrender at Yorktown in 1780 (and hence, no Articles of Confederation, let alone a Constitution, had been ratified), the line of reasoning by the author is sophomoric at best and intellectually dishonest at worst.

Nowhere in the constitution does it authorize the Federal Aviation Administration or the Center For Disease Control either, so I guess they’re out too. The fact that the founders weren’t psychics or time travelers is a real problem for us, apparently.

Ian Millheiser from CAP pointed out that if you used this logic, then Medicare and Medicaid are unconstitutional as well. Pilon agrees, saying that the entire New Deal is unconstitutional. So, there you have it.

Um, no, not exactly. You see, there were no airplanes, no aviation industry in 1780 (or 1781, when the Articles were signed, or 1787, when the Constitution was ratified). There were doctors at the time. The health care industry, tiny as it was, did actually exist. MRIs may be a modern convenience, but physical examinations have existed since time immemorial.

That’s hardly relevant, however, since the aircraft owned by airlines largely travel across state lines (that is, “interstate commerce,” which the Constitution expressly grants the Federal Government the authority to regulate). In fact, when Southwest Airlines began operating solely within the state of Texas, they fought (and won) a court battle with other airlines who had argued Southwest as subject to regulation by the Civil Aeronautics board (or CAB, the precursor to the FAA). Southwest Airlines argued that because their aircraft did not travel across state lines, the CAB could not regulate their routes or set their fares as it did other airlines. The Supreme Court agreed, and Southwest started the airline industry on the route to deregulation and the discount airlines of today.

As for CDC, their mandate is to deal with disease outbreaks that can or do spread across state lines. Epidemics and pandemics, that sort of thing. One could argue with the constitutionality of the research, but fighting diseases would be hard without the knowledge of how they work.

This argument by the author at Hullabaloo is the same specious reasoning that has liberals arguing that, because there were no “assault rifles” when the Second Amendment was passed, those weapons should not be protected by that Amendment. So let’s extrapolate this reasoning:

* Computers did not exist in the 1790s. Therefore, they should not be subject to the Fourth Amendment restriction against search without a warrant.
* The internet did not exist in the 1790s. Therefore, web pages are not subject to freedom of speech or press under the First Amendment.

Now, reverse the reasoning to match the Hullabaloo post:

* Television did not exist in 1780, but Americans need to be informed in order to make decisions. Therefore, the government should provide every American with a television so they can get the news.
* Air conditioning did not exist at the founding of the nation, but hot summers can be hazardous. Therefore, the government should provide every American with an air conditioning unit so they will not be overheated.

So what happens when we divorce the mental construct from the issue of health care? The argument does not have merit. A person could die if they don’t get an MRI that could diagnose some treatable disease, but they could just as easily die without a television to warn them of an approaching disaster or from heat stroke during a heat wave. Only the most ardent communist would argue that the government should be providing televisions and air conditioners.

The argument that because MRIs didn’t exist in 1780, the Constitution doesn’t cover the issue of health care is false. The Constitution gives the Federal Government certain enumerated powers; beyond that, its power is supposed to be limited or non-existent, with all other power being vested in the various States, or in each individual citizen. If the Constitution does not grant the Federal Government the power to do something, that is by design, not by an accident of evolving technology.

Like I said, you figure it out. I will just make one point: I agree that the constitution doesn’t explicitly cover the issue of health care, just as I agree that it doesn’t explicitly cover assault rifles or MRIs. And if this fine fellow had read my post more carefully (or resisted the urge to misrepresent it) he would have included the opening of the post, which was this:

The Cato Institute’s Roger Pilon was on TV earlier saying:

“Nowhere in the constitution does it authorize the congress to enact a health care bill.”

That changes my point a bit, doesn’t it? I was quoting someone else. To the extent this poor soul makes any sense at all, it seems we are in agreement about the illogic of that comment. Neither of us believes that because the constitution doesn’t specifically address something, that doesn’t mean it isn’t allowed to, hence my ironic post title and references to the CDC and the FAA.

But the constitution does say this, in Article I, Section 8, Clause 3:

the United States Congress shall have power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”.

There are raging battles over how the commerce clause should be interpreted and have been since the New Deal. But the question that concerns us on Health Care isn’t whether or not the government is allowed to “provide” health insurance. That’s long settled: it already “provides” 50% of the health insurance in this country through Medicare, Medicaid and the VA. This constitutional question is whether the government can mandate that individuals buy a product from a private party simply because they are a citizen. If this person is a member of the Supreme Court (God help us) then perhaps he is in a position to render such a smug, tendentious final ruling that it doesn’t. Otherwise, he’s just as full of shit as that guy on TV the other day.

Watching too much FOX and listening to Rush and Beck will confuse anyone, I know. And I feel for them. But the level of confusion among the American people is rising in direct proportion to how many hours a day this misinformation is disseminated, leaving them with the sad conclusion that this illogical hash they hear every day is common wisdom. WTTW: Glenn Beck is a clown. And if you think like him, you are a clown too.

h/t to RK