Among the warnings sounded as the Democratic health care reform bill was being debated was that the federal insurance mandate included in the bill—even though not national health care per se—would essentially give the federal government control of the insurance industry. The reason: If everyone is forced to buy insurance, then the government must deem what sort of insurance qualifies as adequate to meet the mandate. This piece of Obamacare promises to turn every medical procedure into a major political fight, with special interest lobbying rather than objective medical expertise being more likely to determine what kind of health care gets covered and what kind doesn’t.
The problem goes beyond ugly politics, however, and into the realm of moral repugnance. The contention has already started, as the Catholic bishops have formally protested the pending inclusion of contraception and sterilization among items that must be covered in every American insurance plan.
Whether one agrees with Catholic morality is beside the point. The point is that this is no way to deal with a major economic sector in a free, pluralist society. Some medical doctors think chiropractors are quacks; some chiropractors think medical doctors are quacks. Some people think marijuana is an excellent pain killer; others think it is an immoral drug. The goods and services that the 300 million people in this country consider to be effective—or objectionable—instances of health care vary, sometimes dramatically, according to geography, culture, religion, and ethnicity. Now a single institution, the national government in the form of the Department of Health and Human Services, is charged with arbitrating which goods and services make the cut and which don’t. Those who lack the political clout to get their preferences included will pay coming and going: their insurance premiums will cover things that they don’t want and they’ll have to pay out of pocket for things that they do.
The variety offered by a medical market is a beautiful thing. Monolithic medicine mandated by a law that most Americans opposed is not.
Here’s another instance of the kinds of gross conflicts of interest produced by this relationship:
It’s hard to see this as anything but partisan pandering on the part of the largest public sector union, the American Federation of State, County, and Municipal Employees (AFSCME).
Despite rumors to the contrary, the demise of the influence and legacy of Big Labor have been greatly exaggerated.
In this week’s Acton Commentary, I take a look at the prospects of “right-to-work” legislation in Michigan, “A Lesson from Michigan: Time to End Crony Unionism.”
One of the things that disturbs me the most about what I call “crony unionism” is the hand-in-glove relationship between the labor unions and big government. We have the same kind of special pleading and rent seeking in this system as we do in crony capitalism, but the labor unions enjoy such special protection that there isn’t even a hint of democratic competition.
The unions get windfalls from government subsidy and turn around and actively campaign for the expansion of government. The partisan character of some of the ad campaigns funded by labor unions are particularly egregious. I’ve recently seen a labor-funded ad running in Michigan that demonizes Republicans and lauds Democrats, and FactCheck.org ran a report earlier this month about attack ads from the American Federation of State, County, and Municipal Employees.
One of the noteworthy thing about unions in America is that the share of union members are increasingly coming from the public sector rather than the private sector. This adds an additional layer of concern to the larger problem of crony unionism. We in effect get government employees using government funds to campaign for the expansion of government.
Labor unions form a vital part of civil society, but when they are turned into arms of the government, their purpose is perverted and corrupted. Professor Charles W. Baird examines the merits of free labor in his Acton monograph, Liberating Labor: Liberating Labor: A Christian Economist’s Case for Voluntary Unionism.
Even the idea of debating whether unions should enjoy monopolistic privileges in a state like Michigan, dominated by organized labor interests for so long, is refreshing. And I think it might just be instructive about the kinds of alternative and innovative proposals that will have traction at the polls this November.
As a follow-up to last week’s popular discussion (thanks to Glenn Reynolds) on prison rape, Justice Fellowship has just released a statement, “Left-Right Coalition Demands Stop to Prison Rape.”
The news alert begins, “A broad coalition from the political left and right has called on U.S. Attorney General Eric Holder to cease any further delay in eliminating prison rape. Calling the high incidence of prison rape ‘a moral outrage,’ Prison Fellowship and supporters from both liberal and conservative organizations unveiled a letter to Mr. Holder demanding an end to sexual abuse in prisons across the country.”
Our commenter is right to point to the cultural complexity of how humor functions in our society. Shannon Love contends, “I don’t think the vast majority of people who joke or threaten about prison rape are seriously indifferent to it when it comes to making real decisions about the penal system. Instead, I think they are simply pointing out one of the ugly realities of any penal system.”
When faced with a stark “yes” or “no” choice on the question of the prevalence of prison rape, I agree that most people are not “seriously indifferent.” But as for ranking it as an issue of actionable importance, I highly doubt that the issue is on the agenda of many Americans, even the most politically active.
The work of Justice Fellowship and their allies is a notable exception in this regard. Most people probably just see the kind of “Scared Straight” parody on Saturday Night Live, chuckle a bit, and move on.
Chinese Communism is no longer about ideology. Now it is about power.
I reached this conclusion on the basis of six months spent in China and extensive conversations with my Chinese friend and fellow Acton intern Liping, whose analysis has helped me greatly in writing this post.
China began moving away from Communist ideology under Deng Xiaoping, whose economic reforms disassembled communes and created space for private businesses. He justified these reforms to his Communist colleagues with the saying, “It doesn’t matter if the cat is white or black as long as it catches the mice,” implying that even “capitalist” policies were justified if they succeeded in bringing economic growth. And they certainly did. Since that time, China’s economic development has been tremendous, so now Chinese people overwhelmingly approve of the reforms.
Despite the success of the opening of China’s markets, the country has not completely embraced free enterprise. The PRC’s 60th anniversary celebration last fall featured signs boldly proclaiming, “Socialism is good.” The government still controls key industries such as oil and runs enterprises in many other industries.
Further, all land in China is owned by the government. Home buyers are technically only leasing land for 70-year periods, a policy established assuming that by that time, the houses will need to be rebuilt anyway. The government sometimes sells land inside cities to developers for vastly inflated sums of money, evicting the people who already live there. The remuneration that these people receive is frequently less than the value of the house, forcing them to find inferior housing elsewhere. These policies have made housing within cities prohibitively expensive for most Chinese people, forcing them to commute from the suburbs.
Despite these continued regulations, economic freedom in China has made significant advances compared to its previous completely collectivized state. Enterprise is permitted and even encouraged, as is trade with the outside world. As people come to recognize the benefits of free markets, more and more are becoming eager to participate, which will make it much more difficult for the government to restrict these freedoms again in the future.
However, this economic freedom does not imply political freedom. Deng Xiaoping, the same leader who had spearheaded the economic reforms, was responsible for the Tiananmen Square crackdown on protesters for political reform. That incident twenty years ago is only one of the better-known examples of the political suppression that still occurs today.
The government holds a monopoly on the media, dominates the flow of information, and censors any ideas it finds potentially threatening. It blocks access to web sites that range from information on tense political issues to social networking sites like Facebook and YouTube. When I was studying there, during a one-on-one session a teacher asked me what I knew about the Tiananmen Square massacre, admitting that due to censorship I probably knew more about it than she did. When we had finished the discussion, she erased all relevant vocabulary from the board, saying that she didn’t want anyone to know what we had talked about. Through the high school level and frequently afterward, students are indoctrinated with Marxist philosophy, and studies of literature are focused exclusively on nationalistic or patriotic themes. Political dissent is strictly censored, and dissenters are often denied work or restricted from moving or publishing their work.
According to Liping, most new members of the Communist party do not actually believe in Marxism; they just see membership as a way to improve their chances of finding a good job. Similarly, officials suppress opposing ideas, not because they are persuaded of the truth of Marxism but because they want to prevent dissent and opposition to their own party. Promoting Marxist ideas serves as a way to silence political rivals and to enforce popular support for their own rule. The first Chinese communists sought power to serve their ideology, but today’s Chinese communists use ideology to preserve their power.
The expansion of economic freedom coupled with the continued political repression may seem like a contradiction, and indeed areas with more trade connections like Shanghai also have more political freedom than government centers like Beijing. Yet fundamentally, this paradox exists because of the shaky foundation for what freedom they do have.
Deng Xiaoping’s justification for moving away from Communist economic ideology was based solely on pragmatic reasoning. He figured that since the Communist system was failing miserably, changing economic systems might bring prosperity, a prediction that has been proven true. Yet abandoning the one-party state did not have any such obvious benefits. In fact, retaining a monopoly on political power was in the leaders’ personal interest. They could even argue that it was good for the nation, creating what current president Hu Jintao euphemistically calls a “Harmonious Society” unified by common political beliefs.
In the West, arguments for freedom are closely tied to belief in individual rights which the government cannot legitimately violate. These beliefs originated in the Christian view that people have special dignity because they are made in the image of God. This foundation means that even if it would be expedient for the government to restrict freedom, it has no right to do so. Officials may not always act to preserve the people’s freedom, but in violating freedom, they behave inconsistently with their own ideals.
In contrast, the Chinese Communist Party is consistent in pragmatically following policies that they think will be beneficial, whether they increased freedom or not. Freedom can bring tremendous practical benefits, which is what one would expect of a concept based on a true vision of human nature. Yet these practical benefits alone do not constitute freedom’s foundation. The freedom the government gives pragmatically, it can take away when freedom is no longer practical, or when the benefits it provides are less obvious.
Thus, what China lacks is not merely policies that allow people to act freely but an understanding of the essence and importance of freedom. Freedom cannot be guaranteed by government pragmatism, but only by a genuine understanding of the rights of the people within the country, coupled with leaders who are willing to restrain their desire for power in order to respect these rights.
A recent New York Times story reports that the new British government plans to “decentralize” the National Health Care system as part of its new austerity measures.
Practical details of the plan are still sketchy. But its aim is clear: to shift control of England’s $160 billion annual health budget from a centralized bureaucracy to doctors at the local level. Under the plan, $100 billion to $125 billion a year would be meted out to general practitioners, who would use the money to buy services from hospitals and other health care providers.
The plan would also shrink the bureaucratic apparatus, in keeping with the government’s goal to effect $30 billion in “efficiency savings” in the health budget by 2014 and to reduce administrative costs by 45 percent. Tens of thousands of jobs would be lost because layers of bureaucracy would be abolished.
[N.B. Note that the plan applies only to England; the other constituent countries of the UK will have to make their own policies]
Though I’m not by any means an expert on British politics, the move strikes me as bold for two reasons: (1) The Conservatives have reversed their original position on not touching the National Health Service, instead opting for a plan that seeks to make unprecedented changes to the system; and (2) according to the NYT”s reporting, the plan is predictably facing intense opposition from government employees that stand to lose their jobs, as $30 billion are saved and 45% of administrative costs are phased out by 2014. In fact, some union members are trying to derail the plan by portraying it as a stepping stone towards privatization.
But what is most pleasant about this whole affair is the precise appeal made to an idea very similar to the Catholic understanding of subsidiarity:
“One of the great attractions of this is that it will be able to focus on what local people need,” said Prof. Steve Field, chairman of the Royal College of General Practitioners, which represents about 40,000 of the 50,000 general practitioners in the country. “This is about clinicians taking responsibility for making these decisions.”
Dr. Richard Vautrey, deputy chairman of the general practitioner committee at the British Medical Association, said general practitioners had long felt there were “far too many bureaucratic hurdles to leap” in the system, impeding communication. “In many places, the communication between G.P.’s and consultants in hospitals has become fragmented and distant,” he said.
Here we once again have the understanding that society should deal with problems on the lowest possible level.
But the winning side in this plan is not just that of the proponents of subsidiarity. Economic theory also suggests that policies guided by sentiments similar to subsidiarity tend to increase prosperity: the $30 billion that the government plans to cut from the budget will now exist in the private sector, where it can be put to more productive uses, in accordance with consumer demand. The civil employees released from their positions in the government do not have to mire in unemployment; instead the money from their state salaries will be used by the private sector to create positions which they can fill.
On the other side of the ocean, the United States moves in the other direction: away from subsidiarity, and towards a “one-size-fits-all” solution to fixing our health care system. The office of Congressman Kevin Brady recently released a diagram prepared by the minority of the Joint Economic Committee. It’s a fully detailed diagram of what the new health care system in the United States will look like once all provisions of the legislation are in effect. Take a look:
The current health care system already raises enough questions about whether the principle of subsidiarity is respected. But this newest remake makes the question all the more serious.
In fact, over 37 states have begun to take some form of legal action against the health care legislation on the constitutional grounds that regulations such as the individual mandate overstep the federal government’s legal bounds. As I’ve argued before, the federalism of the Constitution is a rather good embodiment of the principle of subsidiarity, since it recognizes that many issues (even urgent and pressing ones like health care) should be dealt with at the state level.
And some partial victories for advocates of subsidiarity are already making the news: Missouri voters overwhelmingly approved of a ballot initiative opposing the individual mandate (by a landslide ratio of 3 to 1), and a federal judge refused to dismiss a suit by Virginia that challenges the constitutionality of the health care law.
In addition to a national campaign to repeal the legislation at a Congressional level, supporters of subsidiarity would do well to also pay attention to the battles at the state level. I suspect this is where we will see the greatest impact.
One of the charges sometimes leveled against classical liberal thought is that it opposes all authority; that it seeks to reduce society to an amalgamation of atomized individuals, eliminating the role of religion, community, and vibrant social institutions.
Historian Ralph Raico seeks to argue the very opposite in his dissertation, The Place of Religion in the Liberal Philosophy of Constant, Tocqueville, and Lord Acton. The work has been republished for the first time by the Mises Institute. (A particularly interesting note is that the chair of Raico’s dissertation committee was none other than F.A. Hayek).
Raico argues that these classical liberal thinkers did not, by any stretch, subscribe to the secularist views of some of their liberal contemporaries. Instead, they found compelling religious justifications for liberty. Contrary to the assertions of some critics of classical liberalism, they also did not oppose all authority: They recognized the essential value of family, church, and other vibrant and flourishing social institutions. These possess what I would venture to call a “natural authority,” a kind of authority and social standing that naturally arises from the workings of a free society (as distinct from the coercive authority of a government or state). Human beings congregate in these groups precisely because we are social animals, and because we identify these institutions as conducive to our flourishing.
As Acton University faculty member Jeffrey Tucker notes:
What resources were available that highlighted this alternative liberal tradition? There weren’t many at the time. It was during this period that Ralph Raico went to work on his dissertation. He hit the target with an extended discussion of three massively important figures in the history of liberalism for whom a religious orientation, and an overarching moral framework, was central for their thought: French Protestant Benjamin Constant (1767–1830), French Catholic Alexis de Tocqueville (1805–1859), and Lord Acton (1834–1902).
All three were distinguished for
- consistent antistatism,
- appreciation for modernity and commerce,
- love of liberty and its identification with human rights,
- a conviction in favor of social institutions such as churches and cultural norms, and
- a belief that liberty is not a moral end in itself but rather a means toward a higher end.
[....] Raico provides a detailed reading of their work in all these respects and shows that one need not embrace statism, and that one can be a consistent and full-blown liberal in the classical tradition [...] Ours is a varied tradition of secularists, yes, but also of deeply pious thinkers. What drew them all together was a conviction that liberty is the mother and not the daughter of order.
As the case for liberty continues to be made, it is important never to neglect this extremely fruitful tradition in classical liberal thought.
Update: I stumbled across a Lord Acton quote that helps illustrate the distinction between the “natural” authority of voluntary institutions in civil society and the authority of the state:
“Authority that does not exist for Liberty is not authority but force.” – Lord Acton
Thomas Jefferson’s long-forgotten theory of state nullification may have found an ideal time for a resurgence, as the Tea Party and other groups advocate limited government as a solution to many of our current problems in health care, the economic crisis, our broken educational system, and the relentless expansion of government. The concept of nullification is simple, yet powerful: That individual states can and should refuse to enforce unconstitutional federal laws; and that the states, not the federal government, should have the final word on constitutional interpretation. The return of this “forbidden idea” (as its contemporary advocates sometimes describe it) represents not only an opportunity for small-government groups like the Tea Party to enact substantial change, but it also provides a unique opportunity those who are serious about a Christian social witness in public life to implement the principle of subsidiarity.
It is in this spirit that Dr. Thomas E. Woods, Jr. writes his newest book, Nullification: How to Resist Federal Tyranny in the 21st Century. Dr. Woods, who has authored two publications for the Acton Institute (the award-winning The Church and the Market and the monograph Beyond Distributism), as well as two New York Times bestsellers, now brings back the tradition of nullification into the public eye.
The seemingly radical idea of nullification flies in the face of nearly everything we have learned about the federal government and the Constitution: that federal authority always supersedes that of the states, that the Supreme Court has the final say on interpreting the Constitution, and that the only way to get rid of undesirable federal laws is to either have Congress repeal them or the Supreme Court overturn them.
However, Thomas Jefferson was convinced that if the federal government had a monopoly on interpreting the meaning of the Constitution, then there would be no certain way to constrain an unconstitutional expansion of its power. What if the constitutional system of checks and balances were to fail? What if, counter to the wishes of James Madison, ambition fails to counteract ambition, and the different branches of the federal government are able to cooperate in increasing the central government’s reach? Rather than wait two, four, or six years until the next election cycle, Jefferson thought, a more “rightful remedy” would be for states to simply declare that the laws in question violated the Constitution, and would not be enforced in said states.
He was not alone in this belief, as one can find the practice of nullification in the earliest years of the Republic. Kentucky and Virginia famously nullified the Alien and Sedition Acts of 1798. During Jefferson’s own presidency, northern states employed nullification against the total trade embargo imposed by the federal government. During the War of 1812, northern states once more passed resolutions nullifying any potential federal conscription acts. South Carolina passed resolutions nullifying the 1832 “tariff of abominations.” And in the 1850’s, free states frequently invoked nullification in an effort to combat unconstitutional aspects of the fugitive slave laws. Also interesting to note is that southern states did not invoke nullification to defend slavery.
To some extent, this practice continues today. As the Tenth Amendment Center thoroughly documents, dozens of states seek to propose legislation that would prohibit the federal government from enacting health insurance mandates, enforcing some federal gun laws, abusing the interstate commerce clause, and imposing cap-and-trade regulations, among other things. And though these efforts are still underway, supporters of nullification can already point to one success story: over two dozen states openly defied the Real ID Act of 2005, which imposed federal standards on state drivers’ licenses. Though the law is still “on the books,” so to speak, the federal government has given up on enforcement, due to the widespread and extremely overt opposition.
But what does all of this have to do with subsidiarity? At their core, the ideas of nullification and federalism that Dr. Woods invokes echo many of the same concerns that the Church raises in speaking of subsidiarity and the role of the state in society: that there needs to be a just division of responsibilities between different social orders. Social problems should be addressed at their lowest possible level. An unnecessary usurpation of power by, for example, the federal government, undermines the role that state governments should play in resolving some of their own domestic problems.
This principle is often invoked in religious discussion of public policy. The Catholic Church places such great emphasis on the principle of subsidiarity that the Compendium of the Social Doctrine of the Church lists subsidiarity as one of the four foundational principles of social teaching. The Church not only exhorts us to respect human dignity, respect the common good, and have solidarity with the poor, but also teaches that we should pursue these social goals in the proper context of subsidiarity:
It is impossible to promote the dignity of the person without showing concern for the family, groups, associations, local territorial realities; in short, for that aggregate of economic, social, cultural, sports-oriented, recreational, professional, and political expressions to which people spontaneously give life and which make it possible for them to achieve effective social growth [....]
On the basis of this principle, all societies of a superior order must adopt attitudes of help (“subsidium”) – therefore of support, promotion, development – with respect to lower-order societies. In this way, intermediate social entities can properly perform the functions that fall to them without being required to hand them over unjustly to other social entities of a higher level, by which they would end up being absorbed and substituted, in the end seeing themselves denied their dignity and essential place. (185-186)
One can certainly see a similar spirit in the intentions of the framers of the Constitution: the purpose of this founding document was not to provide a new kind of all-powerful entity lording over the states; rather, the states created the federal government in order to serve them as an instrument for promoting the common good – as the Compendium says, to provide “support, promotion, and development.” To discover this, one need look no further than the preamble of the Constitution:
“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
In the same way, subsidiarity dictates that higher orders (e.g. the federal government) exist to promote and assist lower orders (e.g. states) in developing and protecting the common good. But a political system in keeping with the principle of subsidiarity should have appropriate mechanisms to ensure that the abuse and usurpation of power does not take place. This makes the need for a revival of nullification all the more urgent.
Today’s Tea Party-ers eye with skepticism the intrusions of the federal government into all sorts of matters: guns, education, charity, health care, business regulation, etc. They clamor for change, and will certainly have a substantial impact on the coming electoral cycle. But advocates of limited government should also reflect on which strategies are most effective at introducing real and substantial change. Both Thomas Woods and Thomas Jefferson contend that waiting for a benevolent Supreme Court, President, or Congress is not the right way. States cannot trust the federal government to police itself. They must take a direct role in reeling back federal power. Nullification is the best way to concretely implement the principle of subsidiarity, restore true federalism, and strengthen a truly Constitutional rule of law.
Elena Kagan’s Revealing Commerce Clause Evasion
by Kevin E. Schmiesing Ph.D.
Many Americans have a vague sense that the United States has drifted far from its constitutional origins. Every once in a while, something happens that prods us to recognize just how far we’ve gone.
Such was the case last week, during the Senate hearings on Supreme Court nominee Elena Kagan. One of the most widely circulated C-Span video clips was Senator Tom Coburn’s insistent question as to whether the Constitution’s commerce clause permitted Congress to pass a hypothetical law dictating that all Americans must eat a prescribed number of fruits and vegetables every day.
Kagan was clever enough to understand that what Coburn was really asking was, “Is it possible to justify the continued expansion of congressional powers—in particular recent health care reform legislation—on the basis of the authority granted by the commerce clause?” Kagan replied that the fruits and vegetables measure would be “dumb” law. She didn’t dare suggest that it would be unconstitutional, however, for she rightly recognized that she would be backing herself into a judicial corner. How many laws might she have to strike down as Supreme Court justice if she followed a “strict” interpretation of the Constitution?
Thus we’ve come to a point at which a Supreme Court nominee cannot bring herself to condemn a manifestly totalitarian law, because doing so would be utterly inconsistent with federal jurisprudence over the last 80 years. Kagan’s response shines a spotlight on the fact that the Constitution exercises little restraint upon the activities of our national government. This is dangerous territory.
There are rearguard actions from time to time. The Court invalidated campaign finance reform early this year, judging it to be a violation of first amendment rights—for which the justices were upbraided by President Obama on national television during a State of the Union Address. Yet, by and large, Congress acts with impunity to intervene in our economic affairs, usually justifying itself (in those rare cases when it feels the need to do so) by recourse to the commerce clause.
Perhaps it’s worth revisiting that passage from our founding document, on which millions of pages of federal regulation have been piled. Can it support such weight?
Congress shall have power, it says, “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” That’s it. The original purpose of this directive with respect to commerce “among the several States” was to ensure that there would be no interstate trade barriers. The formation of a vibrant national economy, the framers correctly understood, could not very well proceed when Ohio and Michigan erected tariffs against each other. So, the intent of the commerce clause was to protect the principle of free trade within the United States, leaving other financial and mercantile regulatory authority to each state.
Taking the Constitution seriously is important because the document forms the basis for the rule of law in this country. By ratifying it, the states and the citizens thereof affirmed the truth of a great paradox: Enacting limitations on ourselves is the only way to guarantee lasting and genuine freedom. It was a profoundly moral endeavor. The Christian notion of sin lay at the heart of many Americans’ belief that the tendency toward corruption and aggrandizement in government officials—and the potentially destructive whims of democratic majorities themselves—must be guarded against not only by promotion of personal virtue but also by legal instruments such as constitutional separation of powers and checks and balances.
For the most part, the Supreme Court honored the intent of the commerce clause until the 1930s, when the force of public sentiment and political pressure stemming from the Great Depression began to pry the lid off, loosing its potential as a Pandora’s box of federal government programs reaching into every corner of American life. In 1942, the Court defended a production quota on wheat set by the Department of Agriculture, upholding the prosecution of an Ohio farmer for growing too much. When he used his excess, the decision explained, he wouldn’t be buying that amount on the market. His flouting of the law thus affected interstate commerce.
Quod erat demonstrandum: The government can tell you what and how much to grow. Why can it not also tell you that you must purchase health insurance (and therefore what kind, and from which approved vendors)? And why can’t it tell you what and how much you may eat?
Our hope lies in our belief that, when a law is “dumb” enough, nine fellow Americans on the Supreme Court will have the good sense to strike it down. But we will be dependent on their sense alone. Although they will invoke the Constitution as a fig leaf for whatever judgment they render, we know the truth: Its value as a curb on government action—and therefore as a safeguard of freedom—was all-but-destroyed long ago.