Health Care Question

Mon Mar 22 13:34:14 PDT 2010

(Chris)

... this argument seems not to be about "behavior" or "affirmative duties." What it really seems to be about is a Locnher-era prejudice that says the  Constitution is to favor a particular approach to capitalism.  What you seem to be saying is that the government cannot regulate a huge economic sector if part of its scheme involves collecting and orchestrating the demand part of the activity.  What you seem to be saying is that one can only receive Wickard if one has organized oneself into a capitalist venture of some sort (a supplier, selling something). You seem to think that consumers aren't "behaving" when they elect not to buy or to abstain. It would be like saying that those who don't vote aren't expressing a preference. We could talk that way, of course, but we could never make a logic of it. 

The point is simple. This isn't an argument about the concept of "behavior" or "action." It's an argument about how to play capitalism -- New Deal style or old school. Surely conservative law professors are beyond the argument that the federal monster cannot play mother to capitalism if it garnishes enough blessing from the democratic ritual. If there is anything American constitutionalism has taught us rather well, it is that justices are not to make the constitution into an economic manifesto, and are to treat these sorts of issues as being the quintessential thing left to election rituals. 

Aren't some conservatives sounding a bit like sore losers here? Why not "take back the House" and try to repeal it? In fact, try to do it with reconciliation. Or, cut the taxes so it can't be afforded. Isn't this where this sort of battle is to be fought?  

Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
Personal Website: http://seanwilson.org
SSRN papers: http://ssrn.com/author=596860
Discussion Group: http://seanwilson.org/wittgenstein.discussion.html 

----- Original Message ----
From: Christopher Green <crgreen at olemiss.edu>
To: CONLAWPROFS professors <CONLAWPROF at lists.ucla.edu>
Sent: Mon, March 22, 2010 4:11:56 PM
Subject: RE: Health Care Question

The argument isn't that the federal government can never impose affirmative
duties, only that it can't (in the absence of a behavioral trigger) under
the substantial-effects portion of the commerce power. 

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Edward A Hartnett
Sent: Monday, March 22, 2010 3:03 PM
To: 'Ira (Chip) Lupu'; Nelson Lund; CONLAWPROFS professors
Subject: RE: Health Care Question

It's not just state militia laws.  The federal Militia Act of 1792 provided:

"That every citizen, so enrolled and notified, shall, within six months
thereafter, provide himself with a good musket or firelock, a sufficient
bayonet and belt, two spare flints, and a knapsack, a pouch, with a box
therein, to contain not less than twenty four cartridges, suited to the bore
of his musket or firelock, each cartridge to contain a proper quantity of
powder and ball; or with a good rifle, knapsack, shot-pouch, and
powder-horn, twenty balls suited to the bore of his rifle, and a quarter of
a pound of powder; and shall appear so armed, accoutred and provided, when
called out to exercise or into service, except, that when called out on
company days to exercise only, he may appear without a knapsack. That the
commissioned Officers shall severally be armed with a sword or hanger, and
espontoon; and that from and after five years from the passing of this Act,
all muskets from arming the militia as is herein required, shall be of bores
sufficient for balls of the eighteenth part of a pound; and every citizen so
enrolled, and providing himself with the arms, ammunition and accoutrements,
required as aforesaid, shall hold the same exempted from all suits,
distresses, executions or sales, for debt or for the payment of taxes."

Edward A. Hartnett
Richard J. Hughes Professor 
    for Constitutional and Public Law and Service edward.hartnett at shu.edu
Phone: 973-642-8842
Fax:  973-642-8546
SSRN author page: http://ssrn.com/author=253335 

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Ira (Chip) Lupu
Sent: Monday, March 22, 2010 3:58 PM
To: Nelson Lund; CONLAWPROFS professors
Subject: Re: Health Care Question

This discussion is getting awfully shrill.  Rioting in the streets over a
decision on the constitutionality of the health care bill?  Please.  

Permit me to offer a story.  I was on a brief vacation in Broward County,
Florida, on that day in December, 2000, when the Supreme Court ruled in Bush
v. Gore II that the election was over, and that Florida should stop its
recount.  What was so striking to me was that everyone on the beach, and on
the streets, and in the restaurants, were very quiet -- everyone went about
his or her business as if nothing had happened.  No doubt, inside the
Washington Beltway, where I work, everyone was going crazy.  Outside that
Beltway (and outside the legal academy), people take very large political
decisions quite in stride.

By the way, re: affirmative duties to act -- read U.S. v. Miller re: the
laws of Virginia, NY, etc, compelling able-bodied men to acquire (at their
own expense) arms and ammunition for use in the state militia. 

Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law George Washington University Law
School 2000 H St., NW Washington, DC 20052
(202)994-7053
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg

---- Original message ----
>Date: Mon, 22 Mar 2010 15:38:16 -0400
>From: conlawprof-bounces at lists.ucla.edu (on behalf of Nelson Lund
<nlund at gmu.edu>)
>Subject: Re: Health Care Question  
>To: CONLAWPROFS professors <CONLAWPROF at lists.ucla.edu>
>
>  Presumably, then, rioting in the streets should also
>  be an appropriate response if the Court does not do
>  that? Or should one's view of the propriety of
>  rioting in the streets differ depending on whether
>  one agrees with the legal merits of the Court's
>  decisions? Or on one's views of the merits of the
>  legislation at issue? Or one's views of what is
>  "transcendentally important"? Or on whether the
>  decision was made by Republican judges?
>
>  Nelson Lund
>  George Mason
>
>  Sanford Levinson wrote:
>
>    I confess I find it also a bit bizarre that the
>    discussion proceeds as if it is totally irrelevant
>    that a 5-judge Republican majority  will be asked
>    to set aside, on the basis of remarkable
>    controversial (and, for many of us, entirely
>    dubious) theories of the Constitution, the most
>    important piece of domestic legislation in almost
>    fifty years.  I think it would be a far more
>    remarkable piece of interventionism than even the
>    Old Court in 1935-36 in terms of the invalidation
>    of a truly central (indeed, transcendentally
>    important) piece of legislation.  Would there be
>    rioting in the streets if the Court did that?  I
>    certainly hope so.
>
>      
>
>    sandy
>
>      
>________________
>_______________________________________________
>To post, send message to Conlawprof at lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
>Please note that messages sent to this large list cannot be viewed as
private.  Anyone can subscribe to the list and read messages that are
posted; people can read the Web archives; and list members can (rightly or
wrongly) forward the messages to others.
_______________________________________________
To post, send message to Conlawprof at lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof

Please note that messages sent to this large list cannot be viewed as
private.  Anyone can subscribe to the list and read messages that are
posted; people can read the Web archives; and list members can (rightly or
wrongly) forward the messages to others.

_______________________________________________
To post, send message to Conlawprof at lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof

Please note that messages sent to this large list cannot be viewed as
private.  Anyone can subscribe to the list and read messages that are
posted; people can read the Web archives; and list members can (rightly or
wrongly) forward the messages to others.

_______________________________________________
To post, send message to Conlawprof at lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof

Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.