The Constitutionality (Or Lack Thereof) of the Affordable Care Act

The Supreme Court must now decide whether individuals can be constitutionally mandated to purchase a basic form of health insurance.  I think there is little disagreement that such a plan would be important in providing health care coverage for most every American.   For insurance companies to offer  customers having major medical conditions a reasonable rate, a pool that includes the very healthy seems necessary to mitigate what would otherwise be a weighty financial burden.

The Court must now decide whether a good bill - a bill that potentially offers major benefits to almost everyone, should be deemed constitutional.  But the constitutionality of a legislative act should not depend on its worth or lack thereof.  Constitutionality should rest solely on proper reading and interpretation of the various articles, clauses, and amendments of which the Constitution is comprised, and the stare decisis factors involved.

The Affordable Care Act, at best, treads the thinnest of constitutional lines.  Never in U.S. history has a citizen been required to participate in a business - in this case the medical insurance business.  No one over 26 years of age can choose to opt out, no matter how rich, no matter how healthy - with rare exceptions.  Constitutionality primarily resides in interpretation of the "commerce clause" contained in
Article 1, Section 8, Clause 3, of the Constitution which empowers Congress and "to regulate commerce with foreign nations, and among several states, and with the Indian tribes." The term commerce as used in the Constitution means business or commercial exchanges in any and all of its forms between citizens of different states, including purely social communications between citizens of different states by telegraph, telephone, or radio, and the mere passage of persons from one state to another for either business or pleasure.

Interpretation has always been directed at parties actively involved in some form of commercial activity.  There has never been a legal compulsion for citizens to participate in a commercial activity should they choose not to do so.  Though the argument can be made that all citizens participate in the "business of health" - if not on an active basis, on a passive basis - by the mere virtue of being alive, the case is hardly dispositive.  To add to the interpretive complexity, citizens are not actually required to participate in the "business of health," but in the "business of insurance."

My feeling is that a federal requirement to buy health insurance, though advantageous to the general welfare on its face, does not pass constitutional muster.  Matters that the government feels are proper for the general health and welfare of its citizens, should be supported by the citizenry via a properly applied tax or tax credit.    The taxing power of the federal government remains unquestioned and without challenge.

It appears that the legislative process, finding itself unable to provide needed health care to the citizenry via a "Medicare for all" system, passed an act that compels purchase of a commercial product - an act that stretches the interpretation of the Constitutional commerce clause too far.

Health Care Rationing - What Is a Death Panel

Health care rationing is discussed by Professor Alan B. Cohen in a Letter-to-the-Editor in today's NY Times (March 21, 2012).  In his letter, Professor Cohen beclouds the true issue that "rationing" implies.  The term is understood to apply to the so-called "death panels," an unfortunate euphemism for limiting health care in certain situations.  Americans must come to understand the enormous percent of the medical dollar consumed during the last years of life (estimated at 33% in some studies), most often without significant life-extension, and the prodigious sum expended on those with terminal illnesses, often on procedures and pharmaceuticals that are at best of questionable value.  The health care dollar is best applied where it is clearly shown to be of significant benefit. We need "panels" to perform well-constructed "outcome studies" to properly evaluate how the shrinking health-care dollar is best applied, and to consider restricting re-imbursement to those applications.

Except for the unlikely discovery of some future inexpensive panacea, Americans must come to accept the fact that the existential advances in medical research and technology (also very expensive) - their intent being to eliminate disease and extend life - are associated with massive increases in cost.  This is the true "reality" that "life-panels" will need to address.

A Jewish State and its Anthem

Recent photos and videos of the swearing-in ceremony of the new Chief Justice of Israel depicted a respectful, but silent Supreme Court Justice Salim Joubran during the singing of the Israeli national anthem "Hatikvah ( Hope)."  Justice Joubran, a Christian Arab, born in Haifa, apparently feels constrained when asked to participate in a vocal rendering of the anthem.  An English translation of the anthem is as follows:

As long as deep in the heart,

The soul of a Jew yearns,

And forward to the East

To Zion, an eye looks

Our hope will not be lost,

The hope of two thousand years,

To be a free nation in our land,

The land of Zion and Jerusalem.

One can understand the Justice's reticence.  The anthem is most definitely a composition that is devoted to Israel as the hope and soul of the Jewish people.  Long before there was an Israel, this poetic expression representing millennia of Jewish yearning, composed by Naphthali Herz Imber in 1878, and adopted as an "anthem" by the Zionist convention of 1897, has, in all liklihood, been sung by most every Jew at one time or another.  Recordings of liberated survivors of the Bergen-Belsen concentration camp singing "Hatikvah" upon their release, have been reproduced and replayed during Jewish High Holy Day services.   I think it is fair to say that the anthem has almost become a part of the Jewish liturgy and is performed at many Jewish occasions around the world, independent of any Israeli association.

This has raised a controversy in Israel and in the rest of the Jewish world.  Is it acceptable for non-Jewish Israelis to stand silent during the singing of the nation's national anthem?  After all, 20% of Israelis would fall into this category.  Should the words of "Hatikvah," then, be altered to accommodate this significant non-Jewish population?

A resounding "yes" to "standing silent."  No one should be expected to intone words that do not express one's beliefs.   No citizenry of any state should be required to sing its anthem, or pledge allegiance to it.  Loyalty does not require public expression of loyalty.  A resounding "no" to altering the anthem's content.  Israel is The Jewish State! " Hatikvah" beautifully expresses that existential fact.  Provided that Israel exists as The Jewish State,  the non-Jewish citizenry must remain aware of and respect Israel's Jewish history and Jewish identity.

More Church-State Issues. Where Does It End?

Should an organization morally opposed to certain behavior accept funding from organizations that support such behavior?  Is it ethically proper for such an organization to employ individuals who support such behavior, thereby paying them a salary which could be used in its support?

Should a religious organization operating in the public sphere be permitted to operate without adhering to the regulations affecting that public sphere?  Should this organization employ taxpayers whose taxes will support the regulations to which the organization is opposed?

If contraception, or some other issue, is contrary to your moral and ethical code, then not only should you not provide services supporting these unacceptable actions to your employees, but you should be certain that any salary paid to your employees not be spent on such activities, either directly, or indirectly via donation to organizations supporting them.  Perhaps all employees should be asked to sign a statement indicating that they will refrain from expending salary on activities deemed immoral or unethical by the employer.

If you, as my employer, will not provide insurance to cover certain approved medical procedures due to  moral issues with the procedures, then how can it be morally correct for you to hire me and furnish me with a salary knowing that it will be used to participate in these "immoral actions?"  What you are really doing is "laundering" the financing of the procedures by paying me to buy it indirectly, rather than my obtaining it directly through an employer-supported insurance plan.

Now what?

The Constitution of the United States - Is It Time for a Change

Supreme Court Justice Ruth Bader Ginsburg was recently quoted as saying "I would not look to the U.S. Constitution if I were drafting a constitution in year 2012.  I might look at the constitution of South Africa.  That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, have an independent judiciary.  It really is, I think, a great piece of work that was done."

The complaints that have been raised about our venerable document is that it has become outdated and almost impossible to change.  As a result the concept of a "living Constitution" has been formulated, that is a Constitution that must undergo some type of Darwinian evolution - which evolution is the interpretation present-day courts assign to it.

Justice Antonin Scalia has commented that there can be no evolution without some agreement as to what the "guiding principle of the evolution" is to be.  In his opinion "as soon as the discussion goes beyond the issue of whether the Constitution is static, the evolutionists divide into as many camps as there are individual views of the good, the true, and the beautiful.......which means that evolutionism is simply not a practicable constitutional philosophy."

Is a document completed in 1789, with the first 10 amendments (The Bill of Rights) added in 1791, to be the basis of our way of governing and our way of living in the 21st century?. Since that time (221 years) there have been only 17 additional amendments.  Isn't it true that what is constitutional and what is not constitutional remains so very vague today?  Does the 14th amendment which includes the phrase "nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws" truly have any real relationship (other than evolutionary) to a right to have an abortion?

Yes, the Founders created a system of laws, but not long after the Founders completed their work, successive lawmakers had no qualms about altering the document.  Amendments concerning abolishment of slavery, rights of citizenship and rights to vote were passed 1865-1870.  No further amendments were added for the next 43 years!  There were two amendments  appended since 1913 that could be considered to be concerned with citizen rights - the abolition of the poll tax, and women's suffrage.  The remainder deal with procedural issues, such as presidential terms,  presidential succession, prohibition, income tax, voting age reduced to 18, popular election of senators, et. al.

Could there not be room for a new, more up to date, Bill of Rights that would take into account the many factors that have influenced the world today, whether technical, scientific, evolutionary, and/or sociologic.  Thomas Jefferson believed that a country’s constitution should be rewritten every 19 years (the approximate span of a generation.) Instead, the U.S. Constitution, which Jefferson did not help to write (he was in Paris serving as U.S. minister to France when the Constitutional Convention was held in Philadelphia), has prevailed since 1789.  He felt "the dead should not rule the living."

Was he right?

The Ponytail Makes the News!

Couldn't stay away from passing on the latest information from the New York Times (Feb 11) - 2 columns, below the fold, on page A10,  from a piece entitled "Like How Your Hair Hangs?  Praise the Laws of Physics"

I'll just get to the meat of the matter - the physics of the ponytail.  Ponytails have been assigned a "Rapunzel Number" based on how the ponytail hangs.  A low PTRN (Ponytail Rapunzel Number) indicates more springiness, causing the ponytail to "fan outward."  A high PTRN indicates a longer ponytail which hangs down rather than fans outward, according to three researchers from England.

But more recently, a Stanford mathematician discovered why joggers' ponytails sway side-to-side instead of forward and backward, or up and down.  Can you guess why?  It's because the jogger's head prevents a forward-backward motion and up-down motion is "unstable"(independent of Rapunzel numbers, I guess.)

The Stanford mathematician and the British researchers are now collaborating on some more advanced studies for a "better understanding of ponytails."

I look forward to the fruits of their future collaborative efforts with great anticipation!

Government, Religion, and the Law

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...."

In case one may have forgotten, the above is the first phrase of the First Amendment to the Constitution of the United States.  The "establishment clause" has become the foundation of what we have now come to term the "separation of church and state."  There is nothing in the Constitution that compels the federal government to grant monies to any organization for any reason.  Religious institutions have tax-free status because of this clause.  A government cannot tax an organization on which it has no right to infringe.

But, using similar reasoning, such an organization should not be the recipient of government funds, nor should it even solicit government funds.  If the government has no constitutional right to some input as to how religious organizations are to allocate these funds, is it right for the government to sanction such grants? The logical answer is clearly "no."

It is wrong for the pundits and politicians to criticize the Obama administration for exercising what is clearly the constitutional imperative by "stare decisis" - the separation of church and state.  The government is not infringing on the right of a church or synagogue, etc. to practice and preach its beliefs, It is merely denying the allocation of  funds to an organization, any organization, any group, any association, etc. that refuses to adhere to federal law.  Why should a religious organization be exempt?  Why should a religious organization even accept an offer of government help?  No organization, religious or otherwise, has a right, certainly not a constitutional right, to government grants; and those that solicit them must agree to accept them with the legal restrictions that apply.

It is so interesting that religious organizations are constantly lobbying the government to refrain from granting assistance to any organization or foreign government that permits legal abortions.  And these same religious organizations demand money from the government even though they refuse to so much as provide information regarding the opportunity to legally seek such assistance; even when so stipulated by law.

Religious freedom is not a freedom to spend government money freely.  If a government grant includes certain legal stipulations, and the organization, religious or otherwise, cannot, in good conscience, adhere to these prerequisites, then the donee should not accept the grant.

There is no denying the government the perquisite of "religious exceptions."  But what kind of a "slippery slope" is that?