Monday, June 25, 2012

Cake or Death: what healthcare means to me (pt 2)

We live in a society of unparalleled contradictions: if I could make a Venn diagram of conservative positions related to healthcare and "liberty," I imagine I would find significant overlap among persons who claim to act from a Christian imperative, deplore abortion, but are quite willing to apply and endorse the use of the verb "to choose" with regard to the manner in which they would prefer to conduct their own lives. As in, "I should be able to choose not to buy health insurance," as though that sort of bizarre statement has any connection with reality or responsibility, personal or otherwise. It is an act of gross personal and societal negligence to "choose" not to purchase insurance (as opposed to being unable to afford to purchase insurance or to afford adequate insurance). Why? Because by doing so, you are demanding that other people shoulder the bills you will inevitably incur when you require emergency room care, unless you carry a card in your wallet that says you prefer to bleed out on the macadam after your car accident. I suppose it could be an option on our driver's licenses, much as one can check off a box indicating a willingness to be an organ donor.

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.


Maggie World said...

I believe President Obama has gone to the mat for your son and my daughter and so many other Americans. And that he has been kicked repeatedly while on that mat, sometimes by the very people he is trying to help. What the Supreme court will do with this issue remains to be seen, and I certainly hope the plan is not struck down at all and especially not in its entirety.
I do believe, however, that the Supreme court is indeed worthy of our respect and even with the conservative bent they now have, the Constitution remains a living breathing thing that is beautiful in its possibilities. We are in the middle of this issue, and debate still rages. The debate is important, though. It will ultimately shape things in a way that satisfies all sides. Regarding the constitution: Yes it was well heeled white men who drafted it and yes it was drafted at a time that could not possibly have considered the things we face today and many of its notions are outmoded; but smart people throughout history have interpreted it in ways that show the breadth of the document and the freedoms it guarantees. Historically there have been times of open construction and times of stricter construction and I believe that the greatest advances of America as a society have been during the more liberal construction. Even those have come in fits and starts, however. This may be a case of two steps forward one step back - but that's still one step forward. We can only hope and wait and if things are knocked down, we have to work to get them back. And we need a leader who is willing to listen. Of the two contenders, only one has demonstrated even the smallest amount of concern in this area.

jeneva said...

Dear Maggie's Mom,

Thank you for sharing your thoughts and expressing your passion. I am concerned that you're reading some of my irony and dark-edged humor a bit too straight--if you read what I wrote again, I think you'll find that you and I agree on most everything.

I have to say that I could have been somewhat less harsh when I wrote, "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." But do note that I reference today's Supreme Court and not the Court throughout history.

To put a finer point on the second sentence of My Lady of Outrage outburst: I do think we need to acknowledge that the Constitution has an historical context and has limitations as a result. Personally, I think many of the founding fathers would be appalled at our elevation of them and the document to the status of gods. Jefferson, for example, said that constitutions should expire every 19 years because "the earth belongs always to the living generation."

The point of the Declaration of Independence and the Constitution is to rebut the European ideology of the divine right of kings. For the framers, the religious hatred and upheaval that began in earnest in England during the reign of Henry VIII and culminated in the English Civil War served as a rationale for the separation of church and state. The beheadings, burnings at the stake, and other forms of torture, death and mayhem were not just historical abstractions, but still visceral reminders of what happens when the state's right to govern derives from divinity.

It's not that I don't think the Constitution lays out a good game plan for government. Sure, the ideals represented by the document should, in fact, serve our country well. But we've come to parse its language in a way that seems counterproductive to moving forward as a society. It's not a Ouija board and the founders can no longer speak to us.

We seem overly distracted as a society in trying to figure out whether something is "constitutional" or not, rather than expending our energy trying to figure out how to establish a fair and equitable society. Because, with this Supreme Court, whether or not something is "constitutional" pertains primarily to whether it works from the perspective of a person who lived in the 18th century. Where there was no right to privacy and during which time if you got sick you most likely died. Whether or not something seems reasonable to a person living in the 21st century seems entirely beside the point. Which is what happens if the Constitution is enshrined as a near-divine document.

And that puts us on an unsustainable course--the world will simply move on without us. All of us, trapped in our internecine battles about 18th century language and 18th century sensibilities. I'm not the only person who thinks this way--a recent report on the use of the American Constitution to frame democratic constitutions around the world shows that it is having less and less influence, precisely because it is so antiquated and ill-suited for a 21st century society. You can read about that here:

So, yes, I believe in the ideals and the promise of the U.S. Constitution, but I can't go along with the current trajectory that would keep us stuck in the 18th century forever and ever and ever.

Maggie World said...

Supreme Court surprises us all sometimes! Great day today!

william Peace said...

Wonderful day for the Affordable Care Act. In 2014 I can be insured like any other American without a disability!

jeneva said...

Maggie's Mom and william--I was glad to have been proven wrong! This is the first chance I've had to get to my blog in several days. We lost power on Friday night with the derecho storms in the DC metro area. We were nomads for several days, but are back home again.