I hate to tell you all out there who figure you could shoulder emergency room bills and rehabilitative care bills post-car accident: your house isn't worth as much as you think. Or post-stroke or post-heart attack because we've all decided that unlimited consumption of high-fructose beverages is a "choice" to which we are as entitled as much as the right to choose not to have health insurance. Talk about the soda industry cheapening the phrase "give me liberty or give me death."
Somehow, I don't think Patrick Henry could have imagined the complexity of modern society when he said, "give me liberty or give me death." Or people today think Henry's statement was merely metaphorical--what, you mean if I choose not to have health insurance you're really going to ask me to choose actual death? Sometimes I feel we're all living inside an Eddie Izzard routine, "Cake or Death?":
Myself, I choose cake. L'chaim.
Yes, yes, yes, being an intellectual myself, I get it--the law student/former English major rush over discovering that, in fact, a close reading of some section of the Constitution allows one to legitimately argue that Congress cannot regulate inactivity. But what does that have to do with living in a moral or ethical society? Or have we all given up on the idea that law establishes ethical frameworks for society? I guess we have--we've come a long way since Aristotle, baby.
And let's get back to that close reading issue. I'm neither a lawyer nor a legal scholar, so I can't offer much insight on the ins and outs of the Commerce Clause, but my graduate training was in the history of ideas, semantics & semiology, and historicism. First of all, the Constitution was written during a period prior to the establishment of modern syntax and, more importantly, modern punctuation. So understanding its foibles should take into account that interpretations predicated on modern syntax and modern punctuation rules do not apply. Second, the Constitution was written by people who believed African Americans were an inferior race and women were the inferior sex. Neither of these moral defects institutionalized in the original document have been thoroughly and completely addressed by modern society, which makes it difficult for some of us to adulate as gods these flesh and blood white guys with extensive property rights.
Third, the Constitution was written in the 18th century when assumptions about society and human liberty were quite different than they are now. Why is there no right to privacy? Because the word was defined differently and not even understood conceptually the way it is today. Have you ever walked through 18th century buildings? Yes, bed chambers have doors, but rooms often open up one upon the other. The concept of the "hallway" that increases square footage and building expense was just coming into vogue. Rich people were still dressed and bathed by servants and parents and children in lower socioeconomic orders usually bunked all in the same room. What we think of as "personal space" and "boundaries" were foreign concepts to these people. We were not that many years away from a time when people publicly urinated and defecated in the public streets. As a medievalist friend of mine once noted, city gutters were considered public toilets and it would not have been considered unusual to wave to your friends passing by while you had your drawers about your legs taking a dump.
Why doesn't the Bill of Rights make mention of a right to health care? Well, let's go back to an historicist understanding of the document. Your local barber often doubled as a physician and bleeding was still the treatment of choice for fevers and other illnesses--the idea being that toxins in the blood caused illness and you could reduce them by reducing their volume within the bloodstream. Medical science has lately come to understand that that was not utter foolishness and it did cure people, but at the very real risk of killing them. We have better options today. Furthermore, no one even understood what DNA or genetics were. Mendel's paper on genetics wasn't presented to the scientific community until 1865. In 1787, homeopathic remedies were relied on by most people, and disease killed more people than it spared. You got sick, you relied on what we now understand as the immune system and your genetic makeup to get better. Many medicines were toxic.
Life was cruel, brutish, short. For most diseases, care was primarily palliative. Jenner's development of a crude vaccination for smallpox was concurrent with the drafting and signing of the Constitution. And his work was entirely experimental.
Healthcare as we know it did not exist. Thus, how can we have expected the Framers to have had any sense for the extraordinary trajectory of technology? I mean, even the Industrial Revolution was a century away.
All of which pondering led me to tell my husband the other night that I was gravely disappointed to be living in an American moment in which "strict constructionism" is the watchword of the legal world, more particularly, the Supreme Court, as though the Framers, honestly, would have preferred that we live in the 18th century in perpetuity, the American Hasidim. I was willing to walk out on the tightrope between treason and love of country (the country I'd prefer to live in) and accuse the Constitution itself of being a ridiculous document, hardly worth of the adulation we're expected to confer upon it. God didn't hand this scroll of paper to anyone. I had read somewhere in Slate, I argued, that the early Supreme Court justices did a power grab and actually have far fewer powers under the Constitution than they allocate to themselves today.
He merely pointed out that the problem with the Constitution is related, really, to the flawed people we appoint to interpret it. Is it a living document or an historical relic we interpret as we would the Shroud of Turin?
Which is why the Supreme Court today is such a ridiculous institution, barely deserving of our respect. Its focus has been persistently on narrow interpretations of an antiquated, outdated document hobbled by its Framers' inability to anticipate, let alone understand, how the world might change. We have only their fleeting reassurances within the document itself and the Federalist Papers that they intended it to be a living document, a global intention that is little served by a judiciary determined to keep us all living in the Dark Ages of 1787. Something like that Texas legislator arguing during a debate about making English the official language of Texas, if English was good enough for Jesus Christ when he wrote the Bible, then it's good enough for the people of Texas. And I mean no disrespect to Texas, which as friends and recent reviews of Gail Collins' book have pointed out, has some of the best scientific research facilities in the country and an active and rich arts and cultural scene.
Do I advocate doing away with the Constitution altogether? No, of course not. That would create social chaos--much as the Justices striking down the individual mandate would throw an industry that represents 1/6 of our economy into chaos, send tens of thousands of hardworking Americans to the brink of bankruptcy and endanger the lives of millions of Americans by letting the insurance companies descend into their patented institutional madness about the relationship between medical necessity and the limits of business contracts.
But it seems to me that this election is about whether we'd like to live in a modern society or whether we want to become the American Hasidim (or the Amish or a secular version of any other fundamentalist society). Because "strict constructionism" is just another version of fundamentalism. And just look at what fundamentalism has brought us. Misery. People taunting helpless school girls, blowing up buildings, arguing with their neighbors. Even the Amish, known primarily for their sage homilies and incredible sweets, are at each others' throats.
As Americans, we are entitled to "life, liberty and the pursuit of happiness"--but just how are we to understand that? Is liberty truly unfettered individualism? It would seem not. And no one can guarantee us the acquisition of happiness, only its pursuit. At what point does the law cease to become a mere exercise in bloodless theory, devoid of contextualization in the moral and ethical world of human affairs? Isn't the Bill of Rights set squarely within contextualization? Isn't that the point?
I've been very hard on President Obama in this blog relative to my perception of his engagement with the significant moral and ethical imperatives raised by healthcare reform. This NYT article gave me some hope that he truly was engaged, although the long-time DC area resident in me worries that these are just trial balloons sent out by the President's emissaries. If I thought this President would really continue to go to the mat for Robert (and my family and all U.S. families), I would go to the mat for him. But I still don't have a definitive word from the White House.
Cake or death, indeed. I choose cake. I choose life.