Practical Philosophy

Practical Philosophy & the Constitution:

Ms. Megan McArdle is quite right to say that ethics -- which is the type of philosophy she and her interlocutor are practicing here -- ought to have some real-world relevance. The old phrase "hard cases make bad philosophy" (which also exists: "hard cases make bad law") is true, and it's true for just the reason she brings up here. The amateur (or very clever) philosopher will simply abstract until they've removed all the negatives from whatever they wanted to prove; or until they've removed all the positives from what they wanted to disprove. This is a form of sophistry.

The argument being put foward is, 'So, if we could provide perfect health care to all people at a low cost, shouldn't we do so?' The concept is that, once you endorse the principle that you should do so in a perfect case, we need only to slowly expand to engulf all the imperfections.

Yet wait: Even in that perfect case, I have a practical objection. Listen to the principles Ms. McArdle lists in her counterargument:

■We have some obligations to future generations, if not necessarily future individuals within those generations. Extreme thought experiment to clarify the principle: we cannot strip mine the earth and leave them to die.
■People have no obligation to perform labor for others. I may not force a surgeon to save my mother at gunpoint. (To be sure, I might. But society would justly punish me for doing so.)
■States have an absolute right to tax their citizens to provide public goods, i.e. goods that are broadly beneficial but non-excludable. They have a right to enact other laws, such as public health rules, to achieve similar ends. Both rights are constrained by the basic rights of their citizens. You may perhaps quarantine Typhoid Mary. You may not shoot her.

■Societies have a right to organize themselves to improve the justice of their income distribution. That organization may include taxation. It may also include property rights, or outlawing behavior like blackmail.
■Property rights did not spring full-blown from the head of Zeus into a natural right. They're contingent, evolving arrangements that happen to work really, really well for encouraging many sorts of beneficial economic activity.

■Just income distribution is not just a matter of relative position, but also of how the income is acquired, and absolute need. I do not have any moral claim whatsoever on a dime of Warren Buffett's fortune, because I have a perfectly adequate lifestyle. I still wouldn't have any claim on his fortune if he suddenly got 100 times richer, provided that he acquired that money through means that we regard as licit.

■Societies should strive to organize themselves so that everyone in the society can, if they desire, acquire the means to provide their basic needs.

■There is no per-se right to health care, since "health care" is not a thing, but a shifting collection of goods and services with amorphous boundaries. Health care is a subset of the modern "basic needs" package, and therefore falls under broader distributional justice claims. No matter what your distributional justice intuitions are, it would be perfectly acceptable, if impractical, to give very sick people the cash required to treat their cancer, and let them blow it on a trip around the world.

■No one should have to work more hours for the state than for themselves. This should inform our approach to taxation.

■Taxation should strive to equalize the personal cost of taxation among all members of society, not the dollar amount or the percentage of income. That is, it is appropriate for Warren Buffet to pay a higher percentage of his income in taxes for shared public goods than I do, because the personal cost of taking 25% of his income is much lower than the personal cost of taking 25% of mine.
■An equal distribution of misery is not a good social goal. When policies to redistribute goods or money result in fewer or poorer quality goods being available, that cost should limit the redistributive impulse.
■If people will not comply with your regime, and their non-compliance may have unpleasant results for themselves or others, this is an important side constraint.

■The government should not interfere in voluntary transactions unless there are significant direct externalities. The fact that you get stressed or unhappy thinking about something does not qualify as a direct negative externality. Nor does the cultural miasma that emanates from these transactions.

■The government certainly should not forbid anyone to purchase something on the grounds that other people are not able to purchase that thing.
Some of those principles are very sound, and others I might argue; but there is something noteworthy missing from them.

What is missing is the Constitution.

The discussion they are having would be a very nice one for a state in some early stage of formation. However, we've had that discussion. The government was allocated certain powers, only. Not one of the Founders ever dreamed that they were endorsing a government that would provide insurance coverage, or provide doctors, or otherwise provide health care to anyone at all -- far from "every citizen" in the country (plus, perhaps, any other persons in the country, legal or illegal).

The Founders provided us with a means for allowing the Federal government to assume sweeping new powers: the Constitutional Amendment process. So, here is a principle missing from the debate that belongs there:

For the Federal government to assume major new powers, that goverment must ask for new authorization for those powers from the People through the amendment process.

"But Grim," you might say, "you know perfectly well that it is impossible to get a Constitutional amendment through such a divided electorate. You're merely attempting to rule that the other side isn't allowed any realistic option for enacting its program."

Not so!

First, the Founders were very well aware of the difficulty of the process they proposed. They were especially aware that it might outright prevent contentious issues from ever becoming Federal law. That was the whole point.

The stability of the government, of the nation, and of the polity all depend on not ramming rapid, massive changes through in the face of severe opposition. Just such behavior had led to civil wars and rebellions across Europe in the period when the Constitution was being written. Two of special moment to the Founders were the English Civil War and the Covenanter movement in Scotland.

That is why the Constitution they wrote requires not only a supermajority of representatives and Senators. It also requires the States to ratify the amendment, each one considering the issue separately in its own space. Without the vote of a supermajority of the States as well as Washington, the Federal government may not assume new powers. It especially may not assume vast new powers touching every citizen in the nation, and every State in the Union.

The amendment process the Founders settled upon was precisely the opposite of the method the Obama administration chose here. They decided to try to pass a law before anyone could even read it, and before the August recess when Congressmembers might have to hear from their constituents about it. Far from asking the States to ratify their approach, they tried to prevent anyone living in the States from having the chance to express an opinion. They would have had Washington insiders decide the issue alone.

Sweeping changes that travel through the legitimate process have to be heard at length, fully argued, and enjoy broad support across the several states as well as within the Federal government itself. That is the way the system is meant to work. It doesn't matter how good your philosophy is: that's the system.

Second, if in fact you could 'provide health care to everyone at minimal cost,' you might well be able to win even the more arduous argument. The problem is, you can't. A substantial number of Americans have lived in countries that have tried, or have traveled in such countries, or have experience with the health care industry, or in one of many other ways become aware of the practical limitations.

Don't tell me, though, that the argument couldn't possibly prevail if it were really true. If the government could actually provide 'perfect health care to all people at low cost,' it would be a very salable idea.

It would sell even through the Amendment process.

What is causing all this revolutionary "water-the-tree-of-liberty" rhetoric at the tea parties is the rank refusal to consider this basic constitutional question. The Federal government wants simply to assume vast new power without asking the States or the People outside of Washington. They may not.

If there is a single philosophical principle that ought to be defended in this debate, that is it. It's not even a question of whether health care is a right or a commodity, whether it's right to want the government to provide it to the citizens or not. The main issue is that they were never given such authority. If the Federal government wants it, it may not simply seize it with no reference to the States or the People. Washington can't do this alone. If they want to make a massive change to the basic nature of the government, they've got to ask for new authority.

The fact that Washington has discovered that it has the power to ignore the Constitution does not make it right. Does everyone remember when George W. Bush, while President, stated that he had Article II power to hold prisoners indefinitely? Remember how badly he was excoriated for that (though the Obama administration appears to agree, now that they are in office)?

Yet at least he made a reasonable attempt to show that the suspension of habeas corpus was rooted in a genuine, spelled-out Constitutional authority of the President's. What is the Constitutional justification for any of this? For the "investment" in General Motors? What limits on the Federal government will Washington recognize?

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