Tribe’s op-ed, as I wrote in the first post, rests very heavily on misrepresenting the Supreme Court’s commerce power doctrine as referring to “commercial choices.” In fact, the cases refer to “commercial activities,” and a switch from “activity” to “choice” is immensely important in the health care litigation, in which opponents stress that the failure to buy insurance is inactivity, not activity, and therefore beyond even the broadest interpretations the Supreme Court has ever given to the Commerce Clause.
Tribe attempted to skew opinion by substituting “choice” for “activity,” and I have called him on that. But I need to go further, because someone who uses words to get things done needs to be kept honest not only about shifting from one word to another, but also about changing the meaning of the same from case to case.
Tribe’s op-ed is a case study in being obnoxious, condescending, and dishonest….and that’s only the first few paragraphs.
After those first few paragraphs he proceeds to bring out a motherly finger and begins wagging it in the faces of the Supreme Court justices while yelling “you’re an imbecile if you don’t agree with me!”
And then, as Althouse write, he brings up “choice.” You know, those people who do what they want, when they want, knowing all along that their choice can lead to some very bad results which may then cost society:
Society can, as a group, based on our idea of the good, say to that person: We are now going to require you to take responsibility at that early decision point of yours. So Tribe says.
Now, apply that to abortion. If we take a similarly broad view of choice, we could say — as anti-abortion advocates do — that women who know they may be fertile have a choice when they go ahead and have sexual intercourse with a man. They can refrain from having sex, but if they go forward, they know that if
they need emergency-room care get that they can’t pay forget pregnant, the public will pick up the tabthey can get an abortion.
Of course, the Supreme Court case law does not present the woman’s right to choose in terms of taking responsibility at that early point. It says:
These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.
The choice that matters is an elaborate process of high-level reflection that occurs after the woman becomes pregnant — that is, when it’s too late to take the precautions that the majority might have liked her to take so that she would not show up with the demand for something it wants to prevent.
A-ha! So being free to choose NOT to have insurance means you must pay society for that right. Now I get it.
The assumption that someone who doesn’t buy insurance is intending to get a free ride is beyond absurd. It’s called calculating the risk. You may have the money to buy it but you would rather buy some extra groceries, build your savings, pay off their car. You’re young; you’re healthy….calculating the risk.
If we follow Tribe’s logic, aren’t people who work at jobs that are low-paying enough to avoid Federal income tax “free riding” on the rest of us with regard to things like national defense, which are only financed by Federal taxes? Some people choose to try to become Broadway actors or writers or artists and don’t make enough money waiting tables to contribute to the defense department, but they still benefit by being defended.
Following Tribe’s line of argument, these people could be forced to take higher-paying jobs, even if they dislike the work, to avoid this horrible free riding. Maybe the government could decide which education and employment choices a person would be allowed to make. After all, if we prevent young healthy people from gambling on not having health insurance, shouldn’t we also prevent them from making the far more destructive choices of going into music, sports, acting or graduate study in the humanities? We should get experts to determine the optimal number of individuals in those fields and then award them to for those individuals scientifically selected at being best for them. If you leave people free to make their own choices, they might not choose the right things. Far better to plan everything for them. After all, it’s inconceivable that any young, healthy individual would in any circumstances be better off skipping health insurance payments in order to pay rent, car payments, tuition or utility bills.
Ouch…that’s gotta sting.
But this can be narrowed down to one simple question, if the government can force us to buy health insurance “for the good of society”…..where does it end?