What Is To Be Done?
The real provocation here is the part of the law that imposes an individual mandate to purchase a hugely expensive product, with resistance punishable by up to five years in prison. Just to make sure we're clear on this, I'll cite Media Matter's own page, claiming to "debunk" that claim. It's not true that the law will send you to prison for not maintaining 'acceptable' levels of insurance; the law only forces you to pay a fine. It's only if you don't pay the fine that you go to prison. But hey, they add, "Willful failure to pay taxes of any sort can result in civil or criminal penalties." Indeed they can, but that doesn't change the fact that this is something new. We have now brought the 'willful failure' to purchase a private product from an insurance corporation into the realm of things we will resolve through punitive taxes, and prison time if you resist the tax.
Anyone who wants to complain about the rise of violent rhetoric among opponents of the law should recognize that the law is what first threatened violence. Throwing people into prison is violence. Extracting money from people under threat of throwing them into prison is violence. It was this law that decided to make "health care" into the kind of issue that we resolve, not with the market by other free private decisions, but through violence and threats of violence.
Health care has never been that kind of issue in America before. Until this law is repealed we have an era in which Americans are under actual physical threat over how they purchase insurance, or make decisions about the care of their family members.
The fact that the police and the courts are 'lawful violence' and resistance is not lawful is a reasonable point to make. It's worth remembering, when making that point, that the American tradition is laid on the idea that we have a right to revolt against tyrannical authority. The British Army was also 'lawful violence,' and the Stamp Act was far less provocation than this.
Indeed, I haven't quite finished describing just how provocative this really is. The fact that the individual mandate is enforcable by arrest and prison time is only part of the issue. The other part is that the mandate has been set so high that most American families will only be able to afford it through Federal subsidies. That means two things:
1) Taking a handout from the government will no longer be a matter for those who are down on their luck, to be done only for as long as absolutely necessary to get back on your feet. It will be the normal condition for American families. From now on, most of us will be dependent on a government handout -- because the government has mandated that we be dependent. That redefines the basic nature of the relationship between government "charity" and what was supposed to be a free and independent People.
2) Because of this dependence, we will be subject to whatever conditions the government puts on the aid. You can compare the experience of buying food with your own cash versus buying food with food stamps: suddenly, you're not really free just to get what you want. You have to submit to the approval of a distant government bureaucracy, which will tell you whether what you want is acceptable or not.
This mandate and that approval are at the core of the 'cost bending' aspects of this bill: in other words, they are indispensable to the whole idea of HCR as it has been put forward. The reason that this allegedly will not break the budget is that everyone will have to buy insurance at this massively expensive level, and that we'll be able to establish 'comparative effectiveness boards' to deny treatments to Americans that the government decides are too expensive.
Put in the most basic terms, the average American family is being told that they will be required to be a ward of the state, and that refusal to comply will result in fines, or arrest and up to five years in prison. Compliance, however, will mean that the decisions about what medical treatments are open to their families will be made by the government, no longer by the family.
What would Patrick Henry have said about that?
This is not a call for violence by me, nor is it a suggestion that violence is legitimate at this time. There are several years in which to rectify this error before that part of the law goes into effect. All I mean to say here is that the American tradition clearly endorses violence against far less tyrannical exercises of power than this. If we get to the point that people are really being threatened with arrest over this mandate, then the government will be the one threatening violence. If that draws a violent response from the citizenry, that may be a legitimate response according to our political tradition.
I think it's important to understand that, especially for those on the pro-HCR side. If you put people in this position, it won't do to complain that they are wicked for resorting to violence. They will reply that you ought not to complain about violence being introduced to the debate, as you introduced it. And they will feel legitimate in using violence against you; nor is it clear that they are wrong, given America's particular political tradition.
This is not the limit of the provocation, by the way; it's only the worst of the provocation. The law is provocative in requiring states to completely rewrite a huge percentage of their budgets in spite of a majority of states not wishing to do so. There are many other things people might complain about as well. Yet it is this imposition of a mandate, backed with the threat of prison, that makes this law an act of tyranny that might give the People a legitimate cause to revolt against Federal authority.
Now, what ought to be done instead of violence:
The best thing is for this to be resolved quickly, and through peaceful and constitutional means. The best way for that to happen is through state government action. The states should call for a constitutional convention to reinforce the restraints on the Federal government's power.
At a minimum, we should act to ensure that the commerce clause is restored to its originalist notion; and that we specify that neither Congress nor the executive branch may pass any laws, nor spend any money, in pursuit of any power not specifically delegated in Article I, Section 8 of the Constitution.
I might suggest that the states consider additional rebalancing provisions, such as repeal of the 17th Amendment. Another very good idea would be to reinforce the originalist position that only the Congress may craft laws and regulations; a lot of that has been done by Federal executive agencies, under Congressional delegation of authority. The SCOTUS used to view such delegation as unconstitutional, and indeed it is not constitutional on an orginalist view; it may be worth re-banning the practice in order to ensure that the Federal government is returned to its intended, proper, constitutional limits.
Many of you are effectively without a voice at the Federal level, given that the opposition party has been reduced to ineffectiveness and wings of the Democratic party have proven submissive. However, your state governments still are under your control to a much greater degree. As they are also the place where action can be most effectively located, I suggest we begin here.
If the 2010 elections produce a Congress that is more balanced and responsive to the people, there may be some limited things that can be done as well. However, it is unlikely that repeal can be effected at the Federal level until 2013. The states are in play even right now. That is where we should focus, and the place where a peaceful and lawful resolution can be most readily created.
It is important for pro-HCR people to realize that they have provoked a potential legitimate revolt, I said above; it is important for anti-HCR people to realize the same thing. If we do not find a way to resolve this peacefully and through politics, there may be serious consequences. Those of us who are devoted to the survival and success of the Republic ought to make action a priority in the coming years, before this mandate goes into effect. It is a dangerous provocation, and one that is likely to produce very bad results if the Federal government tries to enforce it.
