Tomorrow marks the 20th anniversary of the fall of the Berlin Wall. Paul Hollander had this to say at the Washington Post:

The failure of Soviet communism confirms that humans motivated by lofty ideals are capable of inflicting great suffering with a clear conscience. But communism’s collapse also suggests that under certain conditions people can tell the difference between right and wrong. The embrace and rejection of communism correspond to the spectrum of attitudes ranging from deluded and destructive idealism to the realization that human nature precludes utopian social arrangements and that the careful balancing of ends and means is the essential precondition of creating and preserving a decent society.

“[T]he realization that human nature precludes utopian social arrangements and that the careful balancing of ends and means is the essential precondition of creating and preserving a decent society,” seems like a very important realization to me.

Also, over at The Volokh Conspiracy Ilya Somin talks about why the neglect of communist crimes matters. Which it does.

One of the most controversial aspects of the health care debate is the notion of the individual mandate. The argument is that in order make the demand on insurers that they cannot exclude coverage or drastically differentiate prices for consumers based on preexisting conditions tenable (either politically or in actuality) then the insurance pools must include more healthy people. To ensure that healthy people enter the pool, whom individually have no incentive to buy health insurance if they know that they can get it after they get sick because insurance companies can’t reject them based on preexisting conditions, an individual mandate is put in place requiring everyone to purchase health insurance.  The controversy is usually pretty straight forward, boiling down to concern over the infringement of individual liberties. Whether or not we believe our government should have the right to create such a mandate, the immediately relevant question is whether creating such a mandate is constitutional or not, that is, do they have the power?

This online debate does a good job of providing the rough arguments for and against constitutionality claims concerning individual mandates to purchase products or services. This blog post collection does a good job of expanding on the ideas, creating more nuanced arguments about the constitutionality of individual mandates but does somewhat digress at the end into an argument over what “constitutionality” means and should mean. Also some interesting perspectives concerning the power politics exerts on the judicial branch.

The main argument for constitutionality is that under the Commerce Clause, which grants congress the right to regulate commerce “amongst the several states”, congress does have the power to mandate individuals in this manner because purchasing health insurance has economic effects involving interstate commerce. Some strong applications of the Commerce Clause have been the regulation of wheat grown for personal consumption, the regulation of marijuana grown for personal consumption, and upholding the “Gun Free School Zones Act” in United States v. Lopez all of which were upheld because of a connection between these acts and interstate commerce.

The main argument against constitutionality is that while not purchasing health care is certainly an economic decision and has effects on interstate commerce, allowing regulation of such cases applies the Commerce Clause far too broadly and in completely unprecedented ways. Considering that nearly every aspect of our behavior has some economic impact that permeates the whole of the economic scene applying the Commerce Clause in such a way give congress the capability to control every aspect of our individual spending and in fact our personal lives. The argument also follows that the Commerce Clause was not intended to be applied in this way because these results violate the idea that The Constitution provides congress with limited, enumerated powers. It also points out that an act of economic abstaining isn’t necessarily the same as an active economic act when regulation is in question.

I am personally somewhat of a federalist in that I approve of a strong interpretation of the tenth amendment and generally prefer my legislation closer to the chest than the national level. So it shouldn’t be much of a surprise that I lean toward the argument against constitutionality. It seems clear to me that there is a substantial difference between not purchasing health care and growing marijuana. Also if it so happens that there is not available at all levels a non-profit option for healthcare I think the mandate becomes an even greater violation of individual rights and its constitutionality becomes an even more important question. I would be a stronger advocate of a single-payer style system that was funded via taxes because I thinks its simpler and probably has a stronger constitutional argument for it.

I’d write more, but work calls. I’m interested in what you guys think.

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“Someone will be very proud of you.”

Thanks mom!

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Smooth Sailing presents: Rainbow Party Party Boy and the Fabulous Prizes, aka Smooth Sailing is quickly becoming my favorite band. I saw them for maybe the 4th time last week at The Funhouse across the street from the EMP. Not only does the band keep getting better, the show itself is evolving; the most recent addition of an integrated light show makes it hard to find a better musical experience at a bar than this roughly 7 song set.

See them at The Rendezvous on November 20th.

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Yesterday a couple of friends and I were watching The West Wing and on the show there was a brief discussion concerning same-sex marriage. One of the characters, a current senator and presidential candidate played by Alan Alda doesn’t support same-sex marriage protections by the federal government because marriage is a ’state issue.’ We got into a heated discussion where I attempted to defend Alan Alda’s statements against Kevin’s argument that certainly same-sex marriage was like other civil rights issues and the federal government is in fact constitutionally compelled to intervene, arguing that “if states offer the contract of marriage to opposite-sex couples, they must offer it to same-sex couples.”

My personal morality lies with Kevin’s as I do also believe the feds should intervene, and certainly I’ve yet to hear a valid constitutional defense of DoMA, but what I’ve gotten to thinking about is whether the “marriage is a state issue” is anything more than a political convenience for our politicians. Kevin goes so far as to call those who use it ‘bigots’ in the same sense as those who use purely religious reasons are, though I argued that one could in fact support same-sex marriage at the state level, while believing that the national government should keep its hands out of state business (this would require supporting the repeal of DoMA). One could argue that they are simply creating a compromise between their beliefs as equal rights activists and their beliefs as federalists, but does that make their actions any less bigoted? Thoughts?