Madison rolls over

As “Black Monday” dawned to the realization that the fraud-filled spectacle of "ObamaCare" has finally passed the House of Representatives, you may have noticed some rumblings under foot.  It wasn't an earthquake in the literal sense, though from the perspective of our constitutional republic, it might as well have been. It was the sound of James Madison rolling over in his grave.

Of all the Founding Fathers, Madison was the one who most understood the importance of structure and process in our new democracy.  He would have been shocked to hear the President of the United States telling the media that process doesn't matter, or the Democratic Majority Leader of the House of Representatives say that the American people don't care about how the government “makes sausage” -- only that it "gets things done".  To Madison, any such talk would be akin to blasphemy: the Constitution was set up to prevent the kind of system where rules could be changed on a whim, and where partisan, parochial "ends" could always be justified by employing "means" which would put government -- and not the people -- in charge.

In short, the sausage making matters.

Madison understood principally that if the American system of government was going to be truly "by and for the people", it had to function in a way that enshrined a balance of power between the legislative and executive branches, thereby preventing both the whim of an executive acting by fiat, or a tyranny of a majority in Congress usurping the rights of the minority party and acting on "winds of passion".  The challenge for Madison and the other Founders – particularly Hamilton and Jay, his fellow authors of the Federalist Papers – was to create a structure of government that simultaneously gave vigorous representative power to the legislature, but which ensured that this power would be divided between different branches, two distinct houses of Congress, with different representations, rules and procedures.  The goal, as Madison outlined eloquently in Federalist 51, was to ensure that government -- in scope and power – be controlled:

In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

Principal among these “auxiliary precautions”, according to Madison, was to “divide the legislature into different branches; and to render them by different modes of election, and different principles of action, as little connected with each other” as possible.  The House of Representatives, then, was to be apportioned and elected differently than the Senate. House members, elected every two years and assigned to a relatively small constituency, was to be the “people’s house”.  The Senate, until 1913 appointed by state legislatures, offered equal representation among states irrespective of size and six year terms, insulating it from the vagaries of popular opinion. It also offered clear rules that protect the rights of the minority party from being steamrolled by the majority (thus the “filibuster”). The combination created, in Madison’s words, “opposite and rival interests, and the defect of better motives”.  And these motives were – first and foremost -- to create a government that reflected the will and interests of the people.

Given this, one can only imagine the outrage that Madison would feel today as the Congress – the very institution he crafted so carefully – made a mockery of its balanced powers to break every procedural rule in the book to pass a wildly unpopular bill.  It was a bill so unpopular, in fact, that the Democratic leadership in the Congress knew it could not pass on its own merits, and within Congress’ normal rules and procedures. After the Scott Brown victory in Massachusetts as the “41st vote against ObamaCare”, President Obama, Nancy Pelosi and Harry Reid decided to do an end-run around the Constitution by re-writing House and Senate rules to fit their partisan goals . Thus you had Rep. Louise Slaughter (D, NY) putting forth “Deem and Pass” – essentially passing the bill without any vote at all -- and Harry Reid’s decision to in the Senate to use reconciliation on ObamaCare to avoid the filibuster, even though the architect of the reconciliation rule, Democrat Robert Byrd, has said clearly that the rule is not appropriate for legislation of this scope and magnitude and should not be used.

For the left, such opinions are nothing more than inconveniences. The goals of progressive government – universal health care, wealth redistribution and social justice -- are so important, not even the Constitution itself should stand in its way.  Obama has said so himself: In an interview with Chicago Public Radio station WBEZ-FM in 2001, he talked explicitly of the Constitution as a “flawed document” with “essential constraints” that were placed by the “Founding Fathers and Constitution” limiting its ability to promote social justice goals.  Thus the concept of the Constitution as a living document, open to modern interpretation and cultural updating.  This is no longer a theoretical threat to the Constitution.  This threat now sits firmly in power on both ends of Pennsylvania Avenue.

James Madison certainly understood one important thing about the nature of man and power: “But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary.”  Indeed, our leaders today are no angels.  And never have we more needed Madison’s prescriptions for a limited government that operates on rules which guarantee the rights of the minority, and which derives its legitimacy from We the People.  They work for us, after all.  We don’t work for them.

Get off the couch

This great country -- and I do mean EXCEPTIONAL -- is in the grips of a domestic enemy. Let's leave aside the politically correct platitudes and politeness for a moment and be honest. The left is the enemy to traditional American values of individual freedom, personal liberty and entrepreneurship.

They want to create a Nanny State, where the government runs your life. Health care is a big piece of this puzzle. Next will come the kind of car you drive, the light bulbs you use and which colleges you can go to. They want to tax and control every breath you take.

And make no mistake about it: the left is now firmly and fully in charge of the U.S. government. There is not a single (as in ONE) moderate or conservative Democrat in the U.S. Senate, and very few in the House. The White House is inhabited by Marxist revolutionaries -- and that includes the guy in the Oval Office.

We are being led by radicals.

That's the truth. And Democrats and Independents (and many so-called "Republicans") who voted for "Hope and Change" may feel hoodwinked, but the reality was there for all to see. The President of the United States is a Saul Alinksy operative with radical friends. That doesn't happen by accident.  Americans liked the cut of the guys jib and the fact that decades of race-guilt could be slayed in a single pull of the voting lever, and so the nation took a leap into the great unknown.

Off a precipice, and into an abyss.

And then insult got added to the injury by putting the likes of Al Franken (hey Minnesota -- politics is not really a JOKE!) in the Senate, giving the left a massive majority and the 60 votes needed to ram home big-time change on a purely partisan basis.

And that's really the main message here: this is a President and a Congress that thinks that a straight party-line vote is democracy in action. There was no pretense of bipartisan accommodation or compromise, only a "shove it down your throat" Chicago-style politics. The left is so certain they are right that they simply don't care what YOU think.

Nice, huh?

We are in for a very rough ride. But it isn't hopeless. We can take back the House in 2010 and put Nancy Pelosi out to pasture. We can defeat Harry Reid in Nevada and give him the good old Tom Daschle treatment.

We can change this in 11 months.

But to do so, you have to get OFF THE COUCH.

You have to start giving -- in money, time and energy -- to Republican candidates.  Money is the life's blood of politics, and to win in 2010, conservatives need to raise cash.   And if you can't contribute money, then volunteer for a candidate.  Stuff envelopes. Walk precincts. Host voter meetings in your living room.

We can't be passive. The enemy is organized, zealous and unbelievably vicious.  We must parry their every thrust.

We can't afford to lose this country for another generation. Please do WHATEVER you can. I am working with a Republican Congressional candidate here in Colorado -- Diggs Brown.  He's a very good man and a solid conservative.

Find someone -- anyone -- who you can support running for Congress in a swing district.  That's the way we can change this -- by putting solid conservatives in office in 2010.

We must do more than complain. We must ACT!!

Merry Christmas and Happy New Year to all.

Let's make 2010 the year we TAKE BACK THIS GREAT COUNTRY!!

Health care and justice: Reply to Sasseen

Your understanding of the health care debate is truly comprehensive and thoughtful. We must always be concerned with both individual rights and the common good. You have shown the way to deal with the present crisis in a way that is consistent with the Constitution and distributive justice. I do wish to make a few points. First, whatever the requirements of the common good, the constitutional question is crucial. That is, we are a people in virtue of the Constitution, which has formed our habits and shaped our character. These have contributed mightily to a market economy which not only distributes goods and services more efficiently and more abundantly than any other society, but has aroused expectations and even enriched and thereby empowered government agencies. We now desire universal health care because we have gotten closer to it than would have been possible in the market economy's absence. We are enduring the crisis, if not the revolution, of rising expectations.

Socialists can only dream of redistributing the wealth in the presence of the hated capitalistic system that generates massive wealth to redistribute. The socialists' quarrel with capitalism is not over its productive capacity, which even Marx more than acknowledges in the Communist Manifesto, but over its alleged failure to distribute the profits fairly. We need to be sure that, in dealing with the present difficulties, we do not "kill the goose that laid the golden eggs." That may sound trite, but we are talking about preserving our constitutional system that has brought us so many economic as well as political and social benefits.

The fact that private health insurance covers so much more than homeowners' or automobile insurance indicates just how much our expectations have been aroused. Home and auto insurance covers calamities beyond the normal or "daily recurrent needs of the household." Health insurance seeks to cover practically everything related to health, including routine office visits. More than this, the government, through Medicare and Medicaid, does much the same. The result is that most of us make health care decisions on the expectation that someone else will pay--at least directly--for them (even if we pay in the end through premiums or taxes).

We are acting less like self governing citizens of a free republic than like wards of the corporate and bureaucratic state, however benevolent. Proposals to micromanage this already socially generous system or even to replace it with a government bureaucracy threaten the constitutional order which made this generous health care financing possible. This restraint takes the form of many citizens' manifest preference for practically anything but what Democrats are now proposing, which is to scrap the free market in health altogether. Our regime made us what we are, including our generous and advanced health care.

My second point concerns the dynamics of democracy. Our constitution was established to temper and moderate the demos as much as possible, consistent with the equality and liberty sought by our people, and the authority of the majority to make public policy. While it is certainly true that democracy, in some sense, always threatens our delicate constitutional order, it is also true that in the public mind (perhaps not in the "theoretic politician's" mind) our country is not merely a democracy.  Citizens cherish constitutional restraints and protections no less. I think it remains rhetorically effective, as well as true, to appeal to the Constitution as the source of our political prosperity and not merely to defer to majority rule or to acquiese in its ultimate triumph over constitutional restraints.

The Republican party is the institutional vehicle for keeping us true to our national heritage, and it is currently doing as good a job of defending us as can be expected under the circumstances. The Democratic party, or what its founders called the Democracy, is the enemy of constitutionalism. To the extent that we Republicans make that case, we make the case against unrestrained democracy. The rule of law includes a healthy and free marketplace and not just the formal laws that govern it (not to mention the infinitude of bureaucratic rules that burden it).  That is the meaning, I believe, of your distinction between regulating commerce and managing it.

Finally, however much Hobbes and Locke have in common on the state of nature and the state of civil society, their starting and ending points differ. Because the state of nature for Hobbes is "solitary, poor, nasty, brutish and short," he opts for a monarchy over a democracy to govern it. He does leave the door open in theory to a democracy, but few readers of Hobbes believe that he has high hopes for it. On the other hand, for Locke the state of nature is "inconvenient," with all sorts of unresolvable disputes that require a settled, known law to adjudicate them. His preference for democracy is not only not theoretical but explicit, and the king is reduced to a mere executive with some but not all of the monarchical powers. In short, warlike mankind needs a monarch, according to Hobbes, whereas squabbling mankind requires a large element of self government through democratic institutions, according to Locke.

Locke, if he does not prescribe duties at least makes it far more likely that men will freely assume them because they are free to accumulate goods and therefore more able to provide for themselves and others, and even to support a government without being excessively burdened. This is another way of saying that the limited government and market economy that Locke did so much to foster satisfies the demands of the common good very well indeed.

We run the risk of "throwing out the baby with the bath water." Preserving our constitutional system is the key to maintaining our public health.

Is health reform a matter of justice?

(Author: Robert F. Sasseen) Is affordable healthcare for all a question of individual rights, or a requirement of the common good? The public debate in the US seems to assume that it is both. It is not my purpose here to examine what reforms are necessary or wise, but to identify some of the issues of justice implicit in the debate Is There a Natural and Individual Right to Health Care?

Most believe that the US healthcare system needs reform. Why? Because it has become too expensive and too many are left out. All seem to agree on that. So the public debate is focused on how to fix the system, not whether it needs fixing. It is asserted that 46 million Americans do not have access to health care. Strictly speaking, that's not true. Millions of them could, but choose not to purchase health insurance. But let's not quibble over the word "access." In the USA, the door to health care is open to all in the sense that no law prohibits entry to anyone. It remains open even to those who choose for whatever reason not to enter. But isn't the door effectively closed to all who choose not to enter because they can't afford to pay the cost of the care available inside the door? Don't they have an individual and natural right to the care they need? If every individual is by nature entitled to affordable health care as a matter of individual right, then is it not the duty of government to make sure that health care is available to each and all? Indeed, this is the view of some who argue for a national healthcare system established, managed, and regulated by the Federal Government. They argue that it alone is big enough, powerful enough, and wealthy enough to provide affordable (and equal?) health care for everyone.

A question of justice arises with respect to things to which I am entitled by positive law, natural right, or divine command. If there is no entitlement , my lacking a good I desire (say, a room with a view) is not an injustice. Nor would it be just to tax another to pay for that room. But what of life's necessities? Am I not entitled to food, clothing, shelter, education, and healthcare? If so, doesn't justice require that another help provide them for me, at least if I am a child, or poor and destitute through no fault of my own?

Perhaps. But first, what is the ground of that entitlement? No question of an individual right arises if there is no entitlement to the good which is lacking? Some believe that my entitlement arises from my natural right to life, liberty, and the pursuit of happiness. If I have a natural right to life, do I not also have a right to the things necessary to preserve my life and to achieve the happiness I naturally seek ? Is that not logical? Seems so. But how does my right become another's duty to help me?

Classical Liberalism (e.g., in Hobbes and Locke) struggled with that question, not quite successfully in my opinion. In that view, the duty of another to assist me arises from the transformation of my natural rights into civil rights through the "social contract" and the laws established by a legitimate government to maintain the "state of society." In the "state of nature," there are no natural duties arising from my natural right to seek the goods I need. My natural neediness is not the ground of another's duty to help me. My natural right to acquire the goods I want leads to the war of each against each. The goods we need are naturally scarce, there is no natural law, and no executive power capable of enforcing it if there were such a law. I am not naturally my brother's keeper. Thus life in that state of nature is "solitary, poor, nasty, brutish, and short." The purpose of the "social contract," and consequently the duty of government, is to put an end to that war and to establish the conditions, (primarily law and order), which are necessary for the security, peace, progress, and prosperity of society as a whole.

St. Paul once admonished the Thessalonians that "if anyone will not work, let him not eat" [2 Th. 3.10]. Fathers once admonished their children that "the world doesn't owe you a living. Neither does your neighbor. It is your responsibility to provide for yourself and your family." That was a salutary teaching consistent with the harsh facts of life, the natural rights teaching of our Declaration of Independence, and the preservation of freedom and limited government in a democratic republic.

Is Affordable Health Care a Requirement of the Common Good?

What about all those who can't provide life's necessities for themselves? What about the "widow and the orphan," the poor, the handicapped, the disabled, the defeated, the downtrodden, the "marginalized," and all those who suffer "the slings and arrows of outrageous fortune"? If they have no natural and individual right to health care, are they to be left to suffer and die?

Of course not! Compassion forbids it, as does Charity. But compassion is not a virtue, and charity is not the same thing as justice. The "Good Samaritan" aided that particular victim. He did not organize a political party to demand that government create a program to aid all victims everywhere. It is good for society to foster the development of compassion, charity, and the cardinal virtues in its members. But the question we are exploring is whether universal health care is a requirement of justice and therefore a duty of government to establish and to guarantee. Government may have that duty. But according to the originators of the modern natural rights doctrine, its foundation is not in the natural right of needy individuals to life, liberty, property, and the pursuit of happiness. That duty, however, may be inherent in the nature of society and the purpose government."

Now we wish to consider whether the provision of affordable health care for all is a requirement of the common good.

Essential elements of the common good are succinctly stated in the Preamble to the Constitution of the United States: Its purpose is "to form a more perfect union, establish justice, insure domestic tranquility, promote the general welfare, provide for the common defense, and secure the blessings of liberty to ourselves and our posterity." Health is a good thing. Sickness is a bad thing. We naturally seek the first and wish to avoid the second. Health care is necessary for both. My own health is my private good. A healthy population is a public good. An adequate system of health care open to all is a common good, part and parcel of the general welfare. It is therefore a proper function of government to promote its establishment and to govern it operation through appropriate laws.

It is necessary to make some distinctions here. The Preamble to the US Constitution does not grant the Federal Government a specific power to do anything. Its specific powers are enumerated in the body of the Constitution. Other powers (over education for example) belong to the nature of government in general, but are not included in that enumeration. They are reserved to the States or to the People (Article 10). This fact is relevant to the determination of the proper role of the Federal Government with respect to our healthcare system. It is also necessary to understand the distinction between the power to govern, to regulate, to manage, and to administer; as well as the difference between laws, rules, and regulations.

Few would deny that an adequate system of healthcare is part of the general welfare. Most would agree that it is legitimate for government to promote its development and to enact appropriate laws governing its operations. Some laws might be very controversial. For example, laws prohibiting discrimination against illegal aliens, deliberate killing, experimentation on humans, cloning, eugenic cleansing, abortion, embryonic stem-cell research, euthanasia, "mercy killing,"or doctor-assisted suicide. But few contest the right, or even the duty of government to pass laws of that nature--i.e., laws as distinguished from rules and regulations. It is a proper function of government to govern, but not necessarily to manage or administer the country's healthcare system.

It is conceivable that the common good may, in some circumstances, require the government itself to establish and manage a healthcare system, or to "nationalize" an essentially private one. Some believe that "socialized medicine" is the best way to go. But it is a question worth considering whether such a system is compatible with liberty, with the duty of government "to secure the blessings of liberty to ourselves and our posterity." There are several essential elements in the common good. It is the duty of government to attend to them all and not to sacrifice one to another. That requires prudence and moderation in the government and in the people.

Who Benefits? Who decides?

Women and children first” shouted the captain of the sinking ship. “First treat the slightly wounded” ordered the field commander in desperate and immediate need of more soldiers. (Some military doctors wanted to treat the severely wounded first, to prevent their dying.) As to the availability of health care in general, some demand affirmative action for minorities and a “preferential option for the poor” in the name of justice and human dignity. They are many and needy. A few insist that priority should be given to those who most benefit society. Others hold that equal treatment is the proper principle. They differ whether equality means equal eligibility for each person, or proportionally equal financial support “to each according to his need.” Still others take a more pragmatic approach that others reject as inadequate and insensitive. “First, don't bankrupt the country. Second, don't take over the healthcare system or usurp powers not constitutionally authorized. Respect the proper role of state and local governments, as well as private, intermediary associations. Third, require all to purchase private health insurance open to all, and remove restrictions on the insurance industry that inhibit competition and restrict its territory. (Government should be insurer of last resort for the deserving poor.) Fourth, focus health care on the condition and futures of the different age groups. Provide health education and preventive care for all; remedial and curative care for children and adults who can be restored to useful life; only palliative care for the rest--particularly for seniors running out of gas. No extraordinary procedures or inordinately expensive measures for any person who can't pay for them.“

It is impossible to avoid rationing and setting priorities so long as health care is a scarce good and the demand is virtually without limit. Such issues are in substantial part questions of distributive justice. But who is to decide? Some of them are decided in the market place by what insurers and sellers of health care can afford to offer, and buyers can afford to purchase. Some are decided by government, in the subsidies or funding it provides and in the general laws and regulations it establishes for health care. Some are decided by the doctor and patient together. Many American's prefer that rationing decisions be made as close to home as possible--between the patient and his doctor.

It is characteristically human to “want something for nothing,“ ”to have our cake and eat it too,“ to have ”third-party payers“ for the goods we want. There is never enough money to do everything we desire. Choices must be made and priorities set, not only within the world of health care but between other elements of the common good. Universal healthcare may be very desirable, but self-defense and victory in war more imperative. Government must decide among competing goods and competing “values.” The struggle for power and deliberation about what is best are the very stuff of politics. We want the People to decide, and that is why we favor democracy. “Power to the People!“"

"Justice is the advantage of the stronger“ asserted the ancient Sophist. The law declares what is just and unjust. The winner of the struggle for power is by definition the stronger and makes the laws according to the “values“ of her class or his winning coalition. It is no surprise that too often those “values“ both rationalize and favor the interests of the winners in the struggle for power. Contemporary Liberalism offers no defense against such a cynical view of justice and politics. At bottom, that is its own view.

"Don't tax me. Don't tax thee. Tax that rich man behind the tree!” If there aren't enough of those, keep borrowing or printing the necessary money until the bubble bursts and the economy collapses, hopefully sometime in the distant future. “Do not suffer today what can be put off till tomorrow.“ That appears to be the natural way of democracy.


Much is at stake in this healthcare debate. The dominant opinion of justice and what it requires of government is one of the main causes of its form and policies. The view that justice requires government to guarantee or provide universal and affordable health care is a particular instance of the Marxist principle of justice. ("From each according to his ability, to each according to his needs.") The triumph of that view of justice could eventually bring in its wake the tyranny inherent in the Marxist principle, as our experience of Communism demonstrates.

Frank Rich: proof positive that the left doesn't get it

Frank Rich, the former NY Times drama critic turned left-wing opinion guru, has today written an opinion piece which provides a great window into how liberals view the world. Not surprisingly, they believe that only right-wing fascist nut-jobs are crazy enough to oppose their enlightened policies and programs. There is no rational, intellectual basis for why conservatives do anything -- except to roll the clock back to the dark days of back alley abortions and segregation.  Its a caricature worthy of a comic book. Rich sees the uproar over the New York 23rd Congressional district race as a sign that the Republicans are in a civil war between "reasonable moderate Republicans" and right-wing conservative ideologues of the Glenn Beck/Sarah Palin school. And, predictably, he believes that it will show the nation that the Republican Party is lurching rightward, to a place of armed militias where "angry white men" stalk innocent women, children and minorities. Rich sees what has happened in New York as a "gift" to the Democrats -- and says that the Republican infighting will be "a gift that keeps on giving to the Democrats through 2010, and perhaps beyond." This view, of course, reflects a belief widely shared among liberals that the "rest of America" doesn't share the basic values that have spurred the pro-Doug Hoffman movement -- limited government, low taxes, and fealty to the Constitution.

According to Rich, such beliefs are "wacky and paranoid":

"The battle for upstate New York confirms just how swiftly the right has devolved into a wacky, paranoid cult that is as eager to eat its own as it is to destroy Obama. The movement’s undisputed leaders, Palin and Beck, neither of whom has what Palin once called the “actual responsibilities” of public office, would gladly see the Republican Party die on the cross of right-wing ideological purity. Over the short term, at least, their wish could come true."

This is typical left-wing spin. The Republican Party in upstate New York hand selected a liberal Republican who fully supports the Obama stimulus and is both pro-choice and pro gay marriage -- a candidate who is clearly out of step with the conservative demographics of the district. The uproar was created not because of a cabal of "wacky cultists" but because conservatives want a candidate who is not on the Obama socialist bandwagon. That's hardly a radical position. Rich makes it seem -- as liberals often do -- that if you aren't for abortion-on-demand and deficit busting spending you are some right-wing zealot. They are so certain of the moral rightness of their positions that anyone who disagrees is crazy, stupid or both. It is the height of arrogance.

"The more rightists who win G.O.P. primaries, the greater the Democrats’ prospects next year. But the electoral math is less interesting than the pathology of this movement. Its antecedent can be found in the early 1960s, when radical-right hysteria carried some of the same traits we’re seeing now: seething rage, fear of minorities, maniacal contempt for government, and a Freudian tendency to mimic the excesses of political foes. Writing in 1964 of that era’s equivalent to today’s tea party cells, the historian Richard Hofstadter observed that the John Birch Society’s “ruthless prosecution” of its own ideological war often mimicked the tactics of its Communist enemies.

The same could be said of Beck, Palin and their acolytes. Though they constantly liken the president to various totalitarian dictators, it is they who are re-enacting Stalinism in full purge mode. They drove out Arlen Specter, and now want to “melt Snowe” (as the blog Red State put it). The same Republicans who once deplored Democrats for refusing to let an anti-abortion dissident, Gov. Robert Casey of Pennsylvania, speak at the 1992 Clinton convention now routinely banish any dissenters in their own camp."

Rich's misread of what is going on here is just staggering. Fortunately for conservatives, Rich's view of the summer tea parties and the conservative awakening is typical of the liberal establishment, which believes that its 2008 election victory marked a fundamental shift in America's politics from center-right to center-left.

The Democrats just don't get what has happened in the 9 months since Obama took office and began his naked power grab. The mood of the country has changed -- and the Congressional race in New York is a reflection of the level of frustration that conservatives have over what is taking place in this country. The more dismissive Rich is, the better it will be for those who want to take back the country in 2010 and 2012. Its a freight train coming, and the left remains deaf and blind to it.

Shhhh...let's not tell them the truth, ok?