EDMUND BURKEI listened to today’s argument in the Supreme Court about whether the individual mandate in the Affordable Care Act (ACA) is constitutional. As the challengers to the Act frame the issue, the question is whether Congress has power, under the Commerce Clause, to compel someone to enter into commerce. Once someone enters into commerce, they say, Congress may regulate his or her activity; but Congress cannot force someone to enter into commerce. The ACA requires individuals to purchase health insurance whether or not they wish to do so. That is beyond the power of the federal government. State governments may have such authority under their police power – the authority to provide for the health, safety, and welfare of their citizens – but the United States is a government of limited and enumerated powers, and the power to regulate interstate commerce cannot include the power to enter into a market. That is the essence of the challengers’ argument.
The federal government argues that because most people are going to consume health care sometime – at times they can neither predict nor control – Congress has appropriately created a mechanism to require them to pay for the care they will inevitably consume. If they don’t have health insurance, they will not be able to pay for health care when they receive it, and the costs they incur will be foisted off on other citizens in the form of higher insurance premiums and taxes. In Commerce Clause terms, it is appropriate to require people to purchase health insurance because they will consume health care, and the health care and health insurance markets are “inextricably intertwined.”
The challengers – and some of the justices – argued that if the federal government can compel people to buy health insurance, it can compel people to buy burial insurance to ensure that they pay for those costs. The federal government could even compel people to buy broccoli on the theory that consuming broccoli will improve public health and thus reduce health care costs. There is no limiting principle, argue the challengers, and once Court says that the Commerce Clause gives the federal government the power to require people to purchase goods and services, there is no end to what the federal government might do. If the national economy suffers from slow car sales, the federal government would be empowered to require people to purchase cars.
It seems to me that the argument that health care and insurance are “inextricably intertwined” misses a subtle but critical point: Health care and health insurance are not inextricably intertwined markets. They are, in reality, the same market.
My dictionary defines a market as: “A public gathering held for buying and selling merchandise....The business of buying and selling a specified commodity....The entire enterprise of buying and selling commodities and securities.” The American Heritage Dictionary 1071 (4th ed. 2000)(definitions 1, 4a, 6b). The point is that a market includes the buying and selling of goods or services, as well as negotiation between buyer and seller.
Health care is principally – indeed, overwhelmingly – paid for through insurance. Health care is the delivery side of the market; health insurance is the payment side of the market. A market necessarily includes both the delivery of goods and services and the payment for those good and services – that is what makes a market a market.
In the world we live in today, health care is both essential and potentially extremely expensive. That’s why it is paid for through insurance. Justice Alito likened burial insurance to health insurance, but it’s a flawed comparison. Consumers have considerable control over burial costs. Whether one purchases a simple, unfinished oak casket or a mahogany casket with silver handles is a choice. It may be a difficult choice – the funeral home may take advantage of a family’s grief to sell them an expensive burial – but it is a choice nonetheless. One may choose to be buried in a very inexpensive cardboard casket or even a simple shroud. One may purchase a plot in a cemetery or avoid that cost through cremation. By contrast, consumers often have no choice over either the health care they will consume or the cost of that care. Someone who is hit by a truck or rendered unconscious by a heart attack may consume tens of thousands – even hundreds of thousands of dollars – of health care costs before he wakes up. I don’t know what portion of funeral and burial costs are paid for through insurance, but I am confident it is nothing like the portion of health care paid for through insurance. (I do know that burial costs do not consume close to twenty percent of the Gross Domestic Product, and the nation is not facing a crisis in rising and uncontrollable burial costs.)
Broccoli is also a false comparison. Food is essential, but it is not paid for through insurance. In America, food is largely paid for at the point of sale. Recognizing the realities of this market, the federal government assists those who need help through the food stamp program.
That health care and health insurance market comprise one market is also evident in the fact that negotiation over the cost of health services takes place – not between provider and patient – but between insurer and provider.
Health care may not be unique. Automobile insurance is similar in some essential respects. Of course, requiring people to purchase auto insurance differs from health care in that the requirement is imposed (1) by state governments, and (2) only on people who choose to own cars. But automobile accidents, like health care costs, are inevitable, unpredictable, and potentially very expensive, and are therefore paid for principally through insurance. One of the justices raised this example in today’s argument, and one of the challengers’ attorneys pointed out that the states can compel citizens to purchase auto insurance under their police power while the federal government is limited to its Commerce Clause power. Fair enough. But if one or more states did not mandate automobile insurance, does anyone doubt that the federal government could properly do so under the commerce power?
Does it make a difference if we say health care and health insurance are inextricably intertwined markets or a single market? Perhaps it shouldn't. But recognizing that health care and health insurance are truly one market makes it easier to see that the federal government is not compelling citizens to enter into commerce by requiring them to purchase health insurance. Health care is nearly as inevitable as death and taxes. Everyone is in the purchase side of the market because everyone will inevitably consume health care. (As a group, some receive health care every day.) The Affordable Care Act simply requires individuals to participate in the payment side of a market that they are already in. The limiting principle is this: The health care/insurance market may not be unique, but it is, at a minimum, highly unusual.
After reading the post immediately below (“Fighting for the Conservative Banner”), my friend Mike Dorf – a distinguished constitutional law scholar at Cornell Law School who runs the blog Dorf on Law – asked whether there are likely to be realignments across the liberal-conservative divide. Specifically, he asked whether I thought alliances might develop between (1) right-wing libertarians and left-wing civil libertarians, or (2) right-wing populist religious conservatives and left-wing redistributionists. I respond to Mike’s questions in this post.
I do not believe that history is the inevitable result of structural forces. Individuals determine the trajectory of history. America would not be the same today if, for example, James Madison had not attended the Constitutional Convention in 1787, or Franklin D. Roosevelt had not been elected president in 1932. World War II may have turned out differently if Winston Churchill had been killed in a freak automobile accident in, say, 1925. Others would not have necessarily have promoted the same ideas or taken the same actions. In Buckley, I argue that conservatism would not be what it is today without William F. Buckley, Jr. Who shows up to advocate a particular idea at a particular time – and has the skill, resources, or sheer luck to make an impact – is unpredictable. (People determine history only to an extent, of course. An asteroid can wipe us all out. But the point remains that much of history is chance.) Futurology is bunk.
That having been said, we can make better guesses about what won’t happen than what will. Recognizing that even this is treacherous, I address Mike’s questions.
I doubt that there will be significant realignments across the left-right divide, at least in the foreseeable future. Here’s why: Something fundamental separates liberals and conservatives.
The political philosopher Isaiah Berlin said that conservatives and liberals have fundamentally different visions about liberty. Conservatives, said Berlin, subscribe to the negative vision of liberty. They see liberty as being free from coercion, especially governmental coercion. That’s why conservatives tend to favor weak government. By contrast, liberals embrace what Berlin called the positive vision of liberty, which holds that real liberty entails a reasonable opportunity to pursue happiness. In modern society, that means having at least minimum levels of certain things, such as education, nutrition, health care, and wholesome communities. Liberals think a strong government is necessary to guarantee liberty. See “Two Concepts of Liberty” in Isaiah Berlin, Liberty (Henry Hardy ed. 2002).
Cognitive linguist George Lakoff says that conservatives and liberals unconsciously derive their political views from different visions of successful families. Conservatives, he argues, favor an authoritarian-father model while liberals favor a nurturing-mother model. This leads liberals to believe government should help people, while conservatives believe that government should insist that people play by the rules, be self-reliant, and sink or swim on their own. Government’s role is to punish people who break the rules. Lakoff explains his theory in his book Moral Politics (1996).
As one can see, Berlin and Lakoff are saying something similar, though from different perspectives. While I don’t think either one has the entire answer about what separates left and right, they are both help us understand what divides conservatives and liberals. Also worth reading are The Political Brain by liberal psychologist Drew Westen, and Conflict of Visions by conservative economist Thomas Sowell. For present purposes, suffice it to say they agree that there are fundamental differences between left and right. This does not mean that all conservatives are the same and all liberals the same. That is by no means true (as the last post discusses). Nevertheless, what separates left and right is deeply-felt. The boundary is not easily crossed.
Right-wing libertarians and left-wing civil libertarians have much in common. Ayn Rand Objectivists and card-carrying ACLU members may both believe in robust interpretations of rights. Both may dislike the Patriot Act or favor legalization of marijuana. Both may (or may not) advocate an isolationist foreign policy, as does Ron Paul. Yet, what separates conservative and liberal libertarians is more important than what unites them. The conservative libertarian wants government to protect citizens from foreign invaders and domestic criminals, maintain a court system to adjudicate disputes – and do precious little else. Although it may have nothing to do with the ACLU’s agenda, the liberal ACLU member is a liberal because he believes that government should do many other things – maintain not only a police department, a court system, and armed forces, but a fire department; public schools and universities; a Head Start program; a food stamp program; midnight basketball programs in the inner cities; food stamp programs; perhaps a universal health care system; and certainly agencies regulating food and drug safety, auto safety, workplace safety, environmental safety, and the like. The liberal, moreover, wants to pay for these things through a progressive tax system – which is anathema to the right-wing libertarian. This divide is psychologically more important than commonalities about rights.
Mike’s question about populist religious conservatives (he offers Hike Huckabee as an example) and redistributionist liberals (let’s call them Robin Hood liberals) is more difficult. In part, that’s because religious conservatives are diverse, probably more diverse than is generally understood. I gather from Mike’s question that what he thinks unites the two groups is the feeling that we should not live in a system where the rich get richer and everyone else loses ground. Both groups may be repulsed by executives who make hundreds – even thousands – of times as much as the lowest-paid workers in their firms.
It may be possible for some religious conservatives to be tugged left because of particular issues. Some, for example, may believe that because God made us the stewards of the earth, we have an obligation to control pollution and fight global warming. After committing to the environmental cause, they may begin to feel they have less in common with other conservatives and more in common with liberals. That might result in their drifting left on other issues too.
But I doubt this will happen in significant numbers. Religious conservatives will cling – no, not to their religion and their guns – but to the other deep-seated things that cause them to self-identify as religious conservatives. Populist conservatives and populist liberals have things in common, but their differences run deeper.
A final (and only partially related) comment about “redistributionists.” I don’t think there are many Americans who so classify themselves. Liberals believe in progressive taxation and collective-bargaining rights, to be sure, but they do not think of themselves wanting to redistribute wealth. Just the opposite: they see themselves and wanting to stop a redistribution of wealth from the middle to the upper class that is now underway. They don’t fancy themselves Robin Hoods taking from the rich to give to the poor. They see themselves more as wanting to stop dukes, duchesses, and earls from sending the Sherriff of Nottingham to pillage the villages to enrich themselves. Only right-wingers characterize liberals as “redistributionists,” “levelers,” and “socialists.” Liberals see themselves as wishing to promote fairness by having everyone pay his and her fair share of government services.
While the Republican presidential candidates slug it out over personal matters – accusing one another of being flip-floppers, grandiose, Washington insiders, out of touch with real people, and the like – they are also engaging in a less obvious struggle with ramifications beyond this election. They are fighting over the future of conservatism.
This somewhat under-the-surface debate shows up in the candidates’ repeated claims about being the “real conservative,” the “true conservative,” or the “genuine conservative.” A search in one electronic database reveals that those three phrases have appeared more than 2,000 times in periodicals and news broadcasts over the past twelve months – and that’s not counting “consistent conservative,” which has a different meaning.
There is a tendency to assume this rhetoric is about who is more conservative – that is, further to the right on a one-dimensional ideological spectrum – but actually something else is going on. After all, “real,” “true,” and “genuine” mean something different than “more.”
At bottom, this is an argument about what conservatism means. The candidates are saying that their brand of conservatism is the one and true conservatism.
Though it is seldom articulated explicitly, this question may be the most compelling of all to Republican voters. If God – or more appropriately, Ronald Reagan – were to descend from heaven and declare a particular candidate to be the true conservative, do we doubt that much-relieved Republican voters would happily fall in line behind that candidate and propel him to victory at the Republican National Convention in Tampa?
But there is no word from heaven. Instead, there is an argument over who the real conservative is, and the fact that argument is taking place is evidence of uncertainty. The paradox is that Republican voters may consider being a true conservative a candidate’s most important attribute, even though they are plagued by doubt and division about what being a true conservative means.
Ever since it was redefined by William F. Buckley Jr. in the 1950s and 1960s, conservatism has been an alliance of three different schools of thought: libertarianism, neoconservatism, and religious or social conservatism. A coalition was possible because there is overlap among beliefs by adherents of these philosophies. But there are significant differences as well. Buckley personally embraced all three, reconciling them with doses of moderation and compromise, and his example helped make the coalition possible.
Religious conservatives are primarily concerned with social issues such as abortion, same-sex marriage, religion in public life, and what they see as decadence in modern America. Michele Bachmann, Rick Perry, and Rick Santorum battled for the right to represent religious conservatism. Many assumed that after winning that struggle, Santorum would soft-peddle social issues. Most committed religious conservatives knew Santorum was faithful to their cause; he didn’t need to continue beating their drum to win them over. To win over other types of conservatives, Santorum needed to emphasize issues they care about.
But Santorum doubled down – nay, quadrupled down – on religious conservatism. He questioned whether public education should continue, or whether education should become the exclusive province of private, parochial, and home schools. He made contraception a campaign issue. He said John F. Kennedy’s famous Houston speech about the separation of church and state made him want to “throw up.” He seemed to relish a 2008 speech that he gave turning up, in which he warned that Satan is embarked on a scheme to destroy America, and that the first two institutions to fall to the Father of Lies were academia and mainline Protestantism. Some commentators assume that Santorum’s strategists have calculated that whipping up religious conservatives will be more effective than making a more broad-based appeal. But there is another possible explanation for Santorum’s campaign choices: He’s a true believer who thinks that battling evil and promoting religious conservatism – which, as he sees it, is the same endeavor – is more important than becoming president. After all, even if pushing these issues leads to pluralities in some Republican primaries, it’s a strategy doomed to disaster in the general election.
Neoconservatism is primarily associated with an aggressive military foreign policy designed not only to defend American interests but also to project democracy across the globe. Not long ago, neoconservatives ruled the roost in high Republican circles. Discredited by the invasion of Iraq, however, they are lying low this election cycle. While no current candidate can be clearly classified as a neoconservative, Romney and Santorum seek to make themselves acceptable to neoconservatives by stating that they would not permit Iran to acquire nuclear weapons while Gingrich tried to one-up them by suggesting he would also pursue regime change.
Libertarians have a purist devotion to laissez-faire, and wish to confine government to few activities. Ron Paul represents libertarianism expressly. His goal is not to become the Republican nominee but to increase the influence of libertarianism – especially among young voters. He is having considerable success among voters under 30. By contrast, social conservatives are in trouble with young voters. According to Gallup, most voters under 35 are pro-choice on abortion, and 70 percent support same-sex marriage. Santorum may be getting more votes than Paul this year, but this battle is not merely about 2012. It is for the future too.
Paul’s popularity flows exclusively from his ideas, not from a scintillating personality. Although Paul makes some concessions to the other schools of conservatism – he opposes abortion, even though pure libertarians believe government should not regulate personal choices of that kind – his concessions are few and far between. He rejects neoconservative foreign policy root and branch. When he attacked Santorum for supporting earmarks, Paul called Santorum a “fake conservative.” His message was that libertarians – who oppose government spending so ardently that they will not compromise by funding projects in their districts with government largesse – are the real conservatives.
What about Mitt Romney? Romney is not a libertarian, neoconservative, or religious conservative – and therein lies both his weakness and his strength. Members of none of these three schools are confident that he represents their views. Moreover, because he’s not an identifiable kind of conservative, people question whether he’s a conservative at all. If he clearly belonged to one of the three schools, his compatriots would cut him slack for having taken pragmatic stands on particular issues while he was governor of Massachusetts.
Sometimes Romney is classified as a country club Republican. That’s basically saying that Romney will defend the prerogatives of the well-to-do. Republican Party officials and operatives may believe the party is about representing the wealthy; but Republicanism and conservatism are different things, and few conservatives think that is what their philosophy is about. The difference was observable during the last months of George W. Bush’s administration, when the government bailed out large investment and commercial banks, insurance company AIG, and automobile manufacturers, as well as the government sponsored entities Fannie Mae and Freddie Mack. This was great for the wealthy, but many conservatives – libertarians especially – were outraged.
Romney’s weakness is also his strength because no one school of conservative thought sees him as promoting a competing vision of conservatism. Each school of thought recognizes that in the battle for the future of conservatism, he won’t be their champion – but he won’t be their enemy either. A Romney administration would probably include representatives of all three of the conservative schools, and the battle for the future of conservatism would continue. If members of one of the three schools of conservatism that mistrust him the most, it is religious conservatives – Romney was both pro-choice and pro-gay rights as a Massachusetts politician – and it makes sense that it’s a religious conservative who is taking him on most persistently and forcefully.
Elections, of course, are not just about ideology. They are about candidates – their personalities, competence, integrity, and – in primary contests – electability. Elections are also about specific issues of public policy. Yet in this particular election, questions of public policy seem less important as ends-in-themselves than as examples of what conservatives should believe.
The era when William F. Buckley Jr. exemplified how to make a coalition possible by tempering purity with doses of moderation, pragmatism, and good-natured wit has ended. As the three schools of conservatism separate and compete, their representatives are becoming more absolutist, more extreme, and more mean-spirited.
How will it end? No one can say. It is possible that none of these three schools of thought will prevail. A previously defeated school of conservative thought – such as Burkeanism – may reemerge, or a new school of thought may develop. But when historians study the 2012 Republican presidential contest, they will see the beginning of what is likely to be a long and increasingly intense struggle for the future of conservatism.